A pharmacist entered a plea of guilty to federal misdemeanor charges that he violated the Federal Food, Drug, and Cosmetic Act.
ISSUE OF THE CASE
A pharmacist entered a plea of guilty to federal misdemeanor charges that he violated the Federal Food, Drug, and Cosmetic Act. He later came to court to have this nullified due to alleged ineffective assistance of legal counsel when he entered the plea. Are there arguments that will get his earlier plea reviewed?
FACTS OF THE CASE
A pharmacist in a southern state had been practicing at a compounding pharmacy that specialized in respiratory medications. After leaving this position and while he was employed elsewhere, he was contacted by representatives of the FDA, FBI, and the US Postal Inspection Service who had questions about alleged shipment of subpotent or superpotent medications by his former employer, some of which were billed to Medicare. The pharmacist maintained that during this and subsequent interviews with the federal agents, he was never told that he was a target of their investigations.
He had several meetings with them, and 15 months after the initial communication, he was contacted by an assistant US attorney who indicated she wanted to meet with him and his attorney. The pharmacist contacted the only local attorney he knew, an attorney who had handled some civil law matters for him in the past.
The pharmacist and his attorney attended the meeting, at which they were informed that the federal government intended to prosecute the owners of the pharmacist’s former employment firm for Medicare fraud. The government sought the pharmacist’s assistance with the case. The investigators had concluded that the pharmacist had knowingly compounded and shipped misbranded drug products in interstate commerce. In exchange for his full cooperation with the prosecution, he would be charged with only a misdemeanor offense, thereby avoiding a potential federal felony conviction.
The pharmacist entered a plea of guilty and received a year of probation, a $1000 fine, and an amount of restitution to be determined. Two years later, the pharmacist was notified by the Office of the Inspector General of US Health and Human Services that he might be excluded from participating in Medicare or Medicaid for 5 years. The pharmacist claimed he had never been alerted to that possible exclusion from federally funded health programs by his attorney. About 8 months later, the pharmacist was notified that he was indeed being subject to an exclusion order, a sanction that he later learned had not been applied to the pharmacist who succeeded him at the pharmacy and who had also been charged. The board of pharmacy was also considering action against his licensure status.
The pharmacist filed a petition with the federal trial court to have his guilty plea vacated, arguing that his attorney had not represented him effectively.
THE COURT’S RULING
Following an extensive review of the records in the case, the federal judge did not accept all the pharmacist’s arguments but did conclude that the pharmacist had made a “substantial showing” that he had been denied certain rights secured to him under the Sixth Amendment to the US Constitution. That led the court to issue a certificate of appealability, meaning that there was some indication that his federal constitutional rights had been violated during the criminal proceeding. That certificate secured a review of the matter for the pharmacist.
THE COURT’S REASONING
The court reviewed a substantial number of statements by the pharmacist and his attorney, concluding that their strategy was “to play a delaying game.” The objective, as described by the attorney, was to get the best plea-bargaining deal possible while pushing back the date when the state board of pharmacy might take action against the pharmacist’s license to practice.
The attorney did report reviewing the exclusion statute with the pharmacist, both the portion dealing with mandatory exclusion and the part addressing permissive exclusion. The attorney had concluded that the former applied to felony charges, whereas the latter provision applied to misdemeanor allegations.
A claim of ineffective assistance of counsel has 2 components: deficient performance of the attorney, and resultant prejudice for the defendant. The court found neither.
The certificate of appealability, which would secure a court review of the pharmacist’s case, requires a “substantial showing ... that jurists of reason would find it debatable whether there is a valid claim of the denial of a constitutional right.” The judge handling the case at this point concluded that the pharmacist had met that threshold.
Dr. Fink is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.