Pharmacist's "Abuse of Public Trust" Enhances Criminal Sentence

Pharmacy Times, September 2015 Specialty Pharmacy, Volume 81, Issue 9

Is it appropriate for a judge to add an "enhancement" to lengthen a sentencing period because the pharmacist abused the public's trust?

ISSUE OF THE CASE

When a pharmacist is convicted of conspiracy to distribute oxycodone for an illegitimate purpose and faces sentencing for the crime, is it appropriate for the judge imposing the sentence to add an “enhancement” to lengthen the sentencing period because the pharmacist abused the public’s trust?

FACTS OF THE CASE

A pharmacist in a southern state was indicted on 1 charge of violating a provision in the Controlled Substances Act by conspiring to dispense and distribute oxycodone not for a legitimate medical purpose and not in the usual course of professional practice. He was convicted of the crime in US District Court, but appealed his sentence by advancing 3 arguments in the US Court of Appeals.

The first argument alleged the trial court made an error when the judge denied his motion for acquittal. The second argument claimed the trial court erred when it gave the jury a “deliberate ignorance” instruction. The third argument asserted the judge imposed an incorrect sentence when he included an abuse of trust/special skill enhancement when determining the length of the penalty.

Deliberate ignorance is guidance issued by a judge to a jury before it begins deliberations and goes to the issue of what the defendant knew or chose to ignore. It can be referred to as “willful blindness,” and it runs something like this: you may find that the defendant acted knowingly if you find beyond a reasonable doubt that he or she (1) was aware of a high probability that the prescriptions were not legitimate and (2) deliberately avoided learning the truth. You may not have such knowledge, however, if you find the defendant believed the prescriptions were legitimate or if you find the defendant was careless. The abuse of public or private trust argument advanced by the defendant was that the sentence imposed should not have been lengthened because the pharmacist was not permitted to exercise any professional judgment about his compliance with federal law.

THE COURT’S RULING

The Court of Appeals ruled against the pharmacist on all 3 arguments, upholding his conviction and sentence.

THE COURT’S REASONING

The appellate court concluded that the first argument lacked merit. There was sufficient evidence for the jury to convict the pharmacist using the standard of proof beyond a reasonable doubt. Evidence was introduced regarding various red flags the co-conspirators presented. In addition, there was evidence about the pharmacist’s activities, such as accepting only cash payments for highly prized blue oxycodone tablets and charging $1 to $3 per tablet when the wholesale price was $0.40 to $0.45. He also dropped off large quantities of oxycodone to his co-conspirators in a variety of parking lots at times of the day not usually associated with legitimate traditional pharmacy transactions.

Next, the deliberate ignorance instruction given to the jury was appropriate in circumstances where the facts support an inference that the defendant was aware of a high probability of the prescriptions being illicit and purposely avoided learning all the facts in order to have a definitive defense in the event of a subsequent prosecution. Proof beyond a reasonable doubt is also required for this, and that was the standard the jury applied.

The United States has federal sentencing guidelines for judges to use when imposing sentences on convicted criminals, with the goal to alleviate sentencing disparities across the various federal court jurisdictions. Those guidelines state that a US District Court judge may “subject a defendant to a 2-level enhancement of his base offense level if the defendant ‘abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.’” A position of trust is characterized by professional or managerial discretion, and a person occupying such a position of trust ordinarily receives less supervision than an employee whose responsibilities are nondiscretionary in nature.

The convicted pharmacist argued that when practicing as a pharmacist, he had no discretion about complying with applicable federal laws covering controlled substances. When the judge included his actions as a pharmacist in the base offense level to calculate the sentence to be imposed, that resulted in “double counting.” The court pointed out that “a licensed pharmacist does exercise discretion when faced with indicators of drug diversion. The pharmacist can investigate the indicators or he can fill the suspect prescription.” Here, the pharmacist exercised his discretion and chose to honor numerous illegal prescriptions; that justified application of the sentencing enhancement. The court emphasized that this sentencing enhancement applies only to that subset of offenders who abuse a position of trust, typically someone in a professional capacity.

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.