By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
By Deirdra Funcheon
By Kyle Swenson
Between February and April, a rather remarkable legal drama unfolded in U.S. District Court Judge William J. Zloch's courtroom in downtown Fort Lauderdale. Federal prosecutors had spent two years building their argument against doctors, pharmacists, and businessmen who were operating an internet pharmacy network. But midway through the trial, their efforts unraveled in spectacular fashion. The case — titled United States of America vs. Frank Hernandez et al. — featured misconduct by the prosecution, misconduct by the jury, two mistrials, and a judge refusing to sentence two men who'd pleaded guilty. In the end, the U.S. Attorney's Office was forced to turn tail and release defendants they once labeled as peddling pharmaceuticals illegally.
"There were several jaw-dropping moments," said Sean Ellsworth, one of about 20 defense lawyers who worked on the case.
"It certainly was a wild ride," says Miami defense lawyer Peter Raben. "There were a number of things I've never seen in 30 years of practice — and they all happened in this trial."
The Hernandez case first hit the courts in February 2007. Federal prosecutors indicted 14 people on charges of distributing controlled substances and conspiracy to distribute. Most of them were from Broward and Palm Beach counties, plus three out-of-state doctors. The feds claimed they had illegally sold appetite suppressants and sleeping pills. If convicted, the accused faced about five years in federal prison.
Here's how the business worked: Emmanuel Antonio and Theophilos Antiniou formed a company called E.V.A. Global Inc., which set up various websites selling prescription drugs like the sleeping pill Ambien. A buyer was directed to fill out a short medical questionnaire that asked about height, weight, symptoms, and so on. Once a buyer completed the questionnaire, he'd be directed to another website that would accept payment for the drugs. E.V.A. Global then emailed the questionnaire to physicians who would decide whether to approve the buyer's selections. The doctors acted without ever seeing or speaking to the buyers. If a physician approved the requested purchase, one of several internet-based pharmacies filled the order and shipped the medications.
In recent years, authorities have tried to clamp down on rampant prescription-drug abuse — a difficult task in an era when drugs can be purchased online. When the Drug Enforcement Agency broke up E.V.A. Global's network and federal prosecutors charged everyone from the software developers to the pharmacists, the feds issued a news release congratulating themselves. U.S. Attorney R. Alexander Acosta ominously compared the network to a low-level pusher: "In this case, internet pharmacies dispensed controlled substances much like a drug dealer would on the street — no questions asked," he said.
Mark R. Trouville, special agent in charge of the DEA in Miami, was quoted in the news release as saying, "These rogue websites are fueling prescription drug abuse... The DEA will remain diligent in this fight."
By the time the case came to trial this January, one defendant had been dropped from the case. Three had pleaded guilty and started serving their time in prison. Antonio and Antiniou — two owners of E.V.A. Global — had been persuaded by the feds to plead guilty and testify against the eight remaining defendants.
Defense attorney Raben says the network was never a shady criminal syndicate, as prosecutors contended; it was simply a chain of independent professionals, each of whom was doing his job legitimately. Although the doctors hadn't met patients face to face, he says, the questionnaire was a sufficient form of screening. "The doctors all felt they had prescribed these drugs for legitimate medical purposes," Raben explains. In turn, "the pharmacists figured that if doctors wrote prescriptions, they must be valid."
For seven weeks, jurors heard complex testimony about drugs and prescriptions. It was deep into the trial — week six — when Raben put his client, Frank Hernandez, on the stand. Hernandez owned drug supplier C&H Wholesale and internet drug companies Lifeline Pharmacy and EZRX. A lawyer for another defendant, Steven Marhee, chief financial officer at C&H Wholesale, began to cross-examine Hernandez. At that point, several lawyers recall, the government's lead prosecutor, Ellen Cohen, shot up and accused Marhee's lawyer of calling a witness simply to cover up the fact that his defendant wouldn't take the stand.
Problem is, it's a big no-no for a prosecutor to comment in front of the jury about a defendant declining to testify. Doing so violates the defendant's constitutional right to remain silent.
Lawyers for four defendants who hadn't yet testified asked Judge Zloch to dismiss the case with prejudice and throw out the charges for good. For the judge to make that ruling, he would have to believe that Cohen's exclamation had been a deliberate attempt to cause a mistrial.
Zloch stunned the courtroom by granting the motion and dismissing the case against four defendants. Yet even some of the defense lawyers who were up against Cohen thought her outburst had been just an accident. "I don't think it was intentional," attorney Ellsworth said.
Once those four were dismissed, only four defendants were left. One of those, Lawrence Pinkoff, had helped Antonio and Antiniou run E.V.A. Global. Oddly, just before his arrest, Pinkoff had been using his business ties to help federal agents in Georgia, acting as an informant and helping them snare other doctors and pharmacists. So Pinkoff was surprised when he was charged criminally along with the others. He argued that government agents wanted to prosecute him for the very deed they'd encouraged him to engage in. The technical term is estoppel by government, and it too is unusual to see in the courts.