Petition for Writ of Certiorari — Rotttschaefer v. United States (No. 06-151)

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Supreme Co

() preme Caurt U.S.

06-151 JUL 26 2006

eC OF Thiel ERK

In the Supreme Court of the Gnited States

Bernard L. Rottschaefer, M.D.,

Petitioner

United States of America

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

ELI D. STUTSMAN

Counsel of Record

621 SW Morrison

Thirteenth Floor

Portland, OR 97205

(503) 274-4048

QUESTIONS PRESENTED

Is a physician denied a fair trial in a criminal

prosecution for drug distribution under 21 U.S.C.

§841(a)(1) when the parties frame and argue the issues

under a Government interpretation of the “legitimate

medical purpose” rule of 21 C.F.R. §1306.04 that equates

the criminal standard ("outside the course of professional

practice") with the civil "standard of care"?

Has the circuit court's factors test to evaluate new

trial motions under Rule 33 supplanted the language of

the Rule so as to deny a new trial even when the interest

of justice requires it?

TABLE OF CONTENTS

QUESTIONS PRESENTED ................

TABLE OF CONTENTS ... wc ccccccesvevess

STATUTORY PROVISIONS AND

REGULATIONS INVOLVED ...............

STATEMENT OF THE CASE ...............

A. Trial in the Western District of Pennsylvania

1. The Government’s case ............

2. The defense’s case ................

D. Die NWO soi cece cc cdeess

B. Motion for new trial in district court ......

C. Appeal in the Third Circuit Court of Appeals

REASONS FOR GRANTING THE PETITION .

I. May the crime of unlawful distribution of

controlled substances be defined by the

"legitimate medical purpose" regulation

and equated with a violation of the civil

ere eee

oeeev ee

oes eee

SOC ob oo os da ok kanweensiew 13

A. Statutory eiements of the crime of

unlawful distribution of a controlled

a as ale aa uae gle nte ss 13

B. The Government's interpretation of the

regulation criminalizes malpractice ......... 14

C. Application of the Government's

interpretation in criminal cases results in

convictions for conduct that Congress did

PURGE knavhpvuseaw weewecesers 17

D. The Third Circuit's decision in this case

is in conflict with the Ninth Circuit's

decision in a similar physician prosecution ... 22

E. The error is not likely to be corrected by

IN gc. Oi caw eerie eeeeee 24

II. Has the "interest of justice" standard of

Federal Rule of Criminal Procedure Rule 33

been circumvented by the judicially-created

OOP OTe Pe ree PT re rere 26

NET cons eencenstcisevuseerctteuins. 30

iil

TABLE OF AUTHORITIES

Page

Cases

Arthur Andersen LLP, v. United States,

ee Ge ES 6 bude keeeerkee ss 11, 14

Berger v. United States,

295 U.S. 78 (1935), overruled on other

grounds by Stirone v. United States,

Be Sr CD 6 tod bee ekasbcabauweke 6

Gonzales v. Oregon,

546 U.S. ____, 126 S.Ct. 904 (2006)....... passim

House v. Bell,

547 U.S. ___, 126 S.Ct. 2064 (2006)....... 29, 30

Mesarosh v. United States, me

Se FRED 5's bse eee a 7

Pennsylvania v. Heberle, ......: ye Pr eRe 20

Toogood v. Owen J. Rodal, D.D.S., P.C.,

ee Cc ks oo eee eae eee 21

United States v. Aguilar,

BIG US. COSC) ov cies cee ace scccses 11, 14

United States v. Alerre,

_ 430 F.3d 681 (CA4 2005),

cert. denied, 126 S.Ct> 1925 (2006) .......... 19

United States v. Boettjer,

569 F.2d 1078 (CA9 1978) .............005. 20

United States v. Booker,

Bee th CED v.0's oe eeeoueenns are 11

United States v. Daniel,

re Be eee BND voce cecevececvenses ~

United States v. Ekinci,

Be Fe OE BED fo ei cccoecenntacres 24

United States v. Feingold,

___ F.3d ___ (CA9 2006)

Ninth Circuit Court of Appeals

Ce HE GME ccc cecncvevcevers 19, 20, 23

United States v. Iannelli,

GBS F.3e ISSO (CAS TOTES) . ww ccc cccccccces 27

United States v. Kirk,

584 F.2d 773 (CA6 1978),

oort, Genied, G39 US. 10GB 2. wc cvcccccces: 25

United States v. Mclver,

Fourth Circuit Court of Appeals

ad ae 19

United States v. Moore,

PRP ROP EEOVOD bs iseentesveseeess passim

United States v. Nelson,

$63 F.3d 1927 (CA10 2004) .... 2. ccc cece’ 24

United States v. Norris,

. ge 8 git) | BAe eee. 25

United States v. Pedrick,

BOE Poe ee IGALS IGGO) oon kee ib evesee 24

United States v. Plesons,

560 F.2d 890 (CA8 1977)

cert. denied, 4384 U.S. 966 .. ww. ccc cc cccces 25

United States v. Rosenberg,

515 F.2d 190 (CA9 1975)

cert. denied, 423 U.S. 1031 ................ 25

United States v. Taglia, |

O22 F.2d 415 (CAT 1901) . 0... cccccsccsecns 28

United States v. Williams,

445 F.3d 1302 (CA11 2006) ................ 19

Federal Statutes

SRR UE Nicdkennecavdndeeddsuadosn eee 1

21 USC § 801-950 (CSA) ........... TS eiadina eed passim

BE Ue SEE) vk ree ebeiecvnsnvedseeisne 13,17 ©

gk Fee Geer rer er ere rer 13

21 U.S.C. § 829(a)&(b)...... (iki besseaenes 13

Bae Ta Ts Reem re rarer mM are isnt rt ee 17

SE ek OO k's. xa Sead s ce ew douse passim

ee Te errr rr ree ere rrr ST 1, 9, 25

Se es SE PTET hv rieweasncnesetUeckeuks vanes 1

Federal Rules

Se Se sok ce cok ee were ebenecenues passim

as Le | RPE TETE TTC ee err 8, 10, 25

EE ss goo cud Sako hoe eden tereees eee 7

ither Authorities

Prescription Drug Diversion Prosecutions: Quick

Reference Card 2002, October 2002 ............ 20, 21

Thompson, Lisa. “Doctor Gains Acquittal.”

Erie Times-News 23 May 2006. (accessed at

www.goerie.com on May 30, 2006) ................ 20

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Bernard L. Rottschaefer, M.D.,

respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Third Circuit in this case.

OPINION BELOW

The opinion of the Third Circuit Court of Appeals

(Pet. App. 1la-13a) was designated "not precedential" and

is unreported. F

JURISDICTION

The court of appeals entered its judgment on April

27, 2006. Pet. App. 14a. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS AND REGULATIONS

INVOLVED

The crime of unlawful distribution of a controlled

substance is codified at 21 U.S.C. §841(a)(1), which is set

out in the appendix at Pet. App. 20a. Other relevant

portions of the Controlled Substances Act (21 U.S.C. §801

et seq.) (CSA) are set out in the appendix at Pet. App.

16a-20a. The "legitimate medical purpose" regulation, 21

C.F.R. $1306.04, is set out in the appendix at Pet. App.

21a-22a.

STATEMENT OF THE CASE

A. Trial in the Western District of Pennsylvania

This is a criminal case arising out of the Western

District of Pennsylvania. The district court had

jurisdiction pursuant to 18 U.S.C. §3231.

Dr. Rottschaefer is a physician who practiced

internal medicine in his own office at the time of the

events at issue. He is board certified by the American

Board of Internal Medicine and is board certified in

forensic medicine. Dr. Rottschaefer was charged with

208 counts of unlawfully distributing controlled

substances to five female patients.

1. The Government's case

At trial, four of the five patients (Jennifer Riggle,

Sue Leskovic, Amy Vivio, and Pammy Miller) testified

that they were drug abusers who exchanged sexual favors

for prescriptions with Dr. Rottschaefer. The defense

introduced evidence that called each of those allegations

into doubt. However, the jury was not required to

determine the credibility of those patients and their

allegations to convict, because the Government has

repeatedly insisted that this case is not about "sex for

drugs” and that the alleged exchanges are not the

criminal conduct at issue.

The Government argued for conviction based on

deficient medical practices, as defined by the

Government's standard of care expert. In the

Government's view, the crime of unlawful distribution of

controlled substances is proved by lack of a legitimate

medical purpose when issuing a prescription.’

'See, e.g., Trial Transcript at App. 94-97:

"District Court: * * * [T]he

government's case is this. He was prescribing

drugs in exchange for sex. That's the

government's case. I mean, this is not a medical

malpractice claim.

". RBRKK

"Prosecutor: Your Honor, I'd like to

object to that. We do not have the requirement

to prove motive.

“While we are discussing motive, the

case in and of itself — just the prescribing for no

The prosecution elicited evidence that four of the

patients (Riggle, Leskovic, Vivio, and Miller) were seeing

Dr. Rottschaefer to get prescriptions for drugs they

abused. The women testified that they made up stories

or exaggerated their pain to justify their need for the

prescriptions. The Government criticized Dr.

Rottschaefer for not ordering diagnostic tests, referring

the women to specialists, or prescribing different

medications to them. See, Appellee's Brief 11, 16, 18, 20.

The fifth patient, Corey Schlemmer, who did not allege

that she traded sexual favors for prescriptions, truthfully

complained of migraine pain and received prescriptions

for OxyContin, but testified that she became addicted to

the drug and eventually used street drugs to satisfy her

addiction. The Government argued that a poor treatment

plan for Schlemmer proved the lack of a legitimate

medical purpose, which in turn proved the crime. See,

App 97, App 617-18.

The Government also elicited testimony from a

Drug Enforcement Administration (DEA) agent and from

an expert witness, Dr. Clough, that based on their

reviews of Dr. Rottschaefer's patient charts, the charts

did not justify issuance of the prescriptions. Therefore, in

legitimate medical reason is a crime.

Ue eke KR

"We don't need to prove the sex.

Uk RK K *

"Our expert will say, as he has said in

his opinion, there is no legitimate medical

reason to put these women on these super drugs

for all these months under range of motion

exercises * * *. The crime is the issuance of the

prescription for no legitimate medical reason."

App. 94-97 (emphases added).

The citation "App." refers to the Appendix filed in the

Third Circuit. By contrast, the citation "Pet. App." refers to the

Appendix to this petition.

the Government's view, Dr. Rottschaefer's medical

practices as reflected in his patient charts failed to show

a legitimate medical purpose for issuing the

prescriptions, and thus the issuance of the prescriptions

constituted unlawful drug distribution.

2. The defense's case

Similarly, Dr. Rottschaefer's trial attorneys

defended the case as though the quality of medical

practices controlled. Dr. Rottschaefer's defense attorneys

focused on guidelines for treatment and dosing, standards

- of practice, and the quality of Dr. Rottschaefer's

treatment practices. See, e.g., App 640-728 (direct

examination of Dr. Rottschaefer on medical practices and

patient charts).”

The defense showed that Dr. Rottschaefer, then a

61-year old physician, had been practicing medicine since

1972 and had more than 14,000 hours’ experience in

emergency medicine. Dr. Rottschaefer is published, and

had served on several medical committees. The

challenged prescriptions were not for large quantities of

medications, and Dr. Rottschaefer kept detailed charts.

Each of the challenged prescriptions was for an

appropriate dosage of the medication under the standards

of the Physicians Desk Reference and Pennsylvania law.

Dr. Rottschaefer testified that each prescription was

justified by the patient's medical complaint and his

medical diagnosis. Moreover, each woman testified either

that the prescriptions were issued for her medical

complaints and did treat her problem (see, App. 242-43,

252 (Vivio), 484-86 (Miller), 503-06, 531 (Schlemmer)), or

that she lied about her pain to induce Dr. Rottschaefer to

The Government continued to share that focus, cross-

examining Dr. Rottschaefer on proper practices, physicians’

minimum practice standards in the Pennsylvania state code,

and insurance requirements for exams. E.g., App 729-749, 797,

806-07.

prescribe pain medication (see, App 182-83 (Riggle), 549-

51, 585-86 (Leskovic)).

The defense also presented evidence to disprove

the allegations that Dr. Rottschaefer was having sexual

relations with the patients. Dr. Rottschaefer denied

those allegations on the stand. Jennifer Riggle told a

fellow inmate, Deborah Peterson, that she fabricated her

allegations of exchanging sexual favors for prescriptions.

Pammy Miller could not say whether Dr. Rottschaefer

was circumcised, despite claiming to have performed

fellatio and masturbation on him. Each of the four

women who testified to such allegations initially told

police that she did not have sexu: . activity with Dr.

Rottschaefer, but later changed her story and testified to

the sexual allegations as part of a plea agreement with

the Government, under which she received Government

concessions in her own criminal case.

3. The jury's verdict

On March 9, 2004, the jury found Dr. Rottschaefer

guilty of 153 counts of unlawful drug distribution.

B. Motion for new trial in district court

After trial, substantial evidence from Riggle

herself, showing that Riggle had fabricated her

allegations and perjured herself, was discovered.

Eight months after Dr. Rottschaefer's conviction,

in November 2004, Riggle's former boyfriend Barron

Shelton was released from prison. During the two and

one-half years preceding Dr. Rottschaefer's trial, Riggle

had mailed 72 handwritten letters (consisting of a total of

529 pages) to Shelton in prison, in which she detailed her

plan to testify to fabricated allegations that she traded

sexual favors for drugs with Dr. Rotischaefer, in

exchange for an agreement with the Government for a

lighter sentence on five counts of unlawful drug delivery.

Just before Dr. Rottschaefer's trial began, Riggle wrote to

Shelton for the last time and told him she was in love

with another man. Within days of Shelton's release from

prison in November 2004, Shelton delivered all of

Riggle's correspondence to Dr. Rottschaefer's attorneys.

Dr. Rottschaefer moved for a new trial based on

that newly discovered evidence. In January 2005,

without awaiting responsive pleadings and without a

hearing, the district court denied Dr. Rottschaefer's

motion. The district court ruled that the newly

discovered evidence was merely impeaching, because the

letters themselves were hearsay, and was merely

cumulative, because a witness at trial (Peterson) testified

that Riggle confided that she was fabricating the

allegations that she traded sexual favors for

prescriptions. The court thus held that the discovery of

Riggle's letters did not warrant a new trial.

C. Appeal in the Third Circuit Court of Appeals

Dr. Rottschaefer appealed, arguing that

prosecutorial misconduct and ineffective assistance of

counsel--each committed when the prosecutor and the

defense attorneys applied the civil standard of care as the

criminal standard--denied him a fair trial. Although the

Government defended its framing of the case as a proper

interpretation of the "legitimate medical purpose”

regulation of 21 C.F.R. §1306.04, Dr. Rottschaefer argued

that, in fact, unlawful drug distribution under 21 U.S.C.

§841(a) does not have a "legitimate medical purpose

element,” and that the Government's argument under the

regulation effectively establishes the civil standard of

care as the criminal conviction standard. Dr.

Rottschaefer likened the Government's interpretation to

criminalizing malpractice and argued that the

Government committed prosecutorial misconduct under

Berger v. United States, 295 U.S. 78 (1935),* by

improperly casting the civil standard of care as the

>Berger was overruled on other grounds by Stirone v.

United States, 361 U.S. 212 (1960).

criminal conviction standard throughout the trial. Dr.

Rottschaefer further argued that his defense attorneys

were ineffective for failing to identify and object to the

Government's erroneous interpretation and for

improperly defending him under that interpretation.

Dr. Rottschaefer filed a letter of supplemental

authorities, pursuant to Federal Rule of Appellate

Procedure 28(j), in which he argued that this Court's

recent decision in Gonzales v. Oregon, 546 U.S. __, 126

S.Ct. 904 (2006), supported his position. Dr. Rottschaefer

argued:

"Gonzales rebukes the government's

attempts to import any additional meaning

from the regulation into the CSA. 126 S.Ct.

at 915-16. * * *.

"Gonzales rebuts the government's

argument that there is a legitimacy

‘element’ at all. The crime is prescribing

‘outside the course of professional practice,'

which simply means ceasing to act as a

physician and acting instead as a mere

‘drug pusher’ as ‘conventionally

understood.' Jd. at 922-23, citing United

States v. Moore, 423 U.S. 122, 143 (1975)."

Dr. Rottschaefer also appealed from the denial of

his motion for a new trial. Dr. Rottschaefer argued that

he should be afforded a new trial based on the evidence of

perjury discovered after the verdict, under the "interest of

justice" standard articulated in Mesarosh v. United

States, 352 U.S. 1, 14 (1956), and provided in Federal

Rule of Criminal Procedure 33. Dr. Rottschaefer argued

that the district court erred when it ruled that Riggle's

letters were merely cumulative or impeaching, because

the letters were exculpatory and because confronting

Riggle with the letters on the stand would produce

‘overwhelming evidence of a different quality than the

evidence offered through Peterson. The Third Circuit

consolidated the appeals.

The Government responded to Dr. Rottschaefer's

first argument by asserting that Dr. Rottschaefer's

argument ignored the "legitimate medical purpose

element" of the crime. Appellee's Brief 33-39. In the

Government's view, the crime is proved by evidence that

the physician issued a prescription without a legitimate

medical purpose. Appellee's Brief 35 ("There was really

only one issue at Rottschaefer's trial: whether he

prescribed the drugs in question for a legitimate medical

purpose"); Appellee's Brief 36 ("21 U.S.C. [sic: C.F.R.]

§1306.04(a) [is] the regulation that governs this case").

Therefore, the Government reasoned, the parties properly

tried the case by focusing on the quality of Dr.

Rottschaefer's medical practices and the standard of care.

By the same logic, the Government contended that

the evidence of perjury did not warrant a new trial,

because the case was not tried on, and did not depend on,

evidence that Dr. Rottschaefer exchanged prescriptions

for sexual favors. While it conceded that the letters

would have "undermine[d] Riggle's credibility" and “aided

Rottschaefer's claim that he and Riggle never had sex,"

the Government argued that "would not have made a

difference,” because "Rottschaefer was not charged with

having sex with his patients." Appellee's Brief 46, 51

(emphasis in original). Rather, the Government argues,

"(Rottschaefer] was charged with

prescribing narcotics without a ‘legitimate

medical purpose.' Without question, sex

was an important part of the government's

case. It provided Rottschaefer with a

motive to commit the crime. The

government need not prove motive,

however, to win acase. * * *. Whether or

not Rottschaefer had sex with his patients,

he still could be convicted under the CSA."

Appellee's Brief 51-52 (internal citations

omitted).

According to the Government, the issuance of the

prescriptions was not illegal because they were traded for

sexual favors; it was illegal because the prescriptions

were issued without appropriate tests, X-rays, referral to

specialists, review of other medical records, and other

evidence of deficient medical practices that showed a lack

of "legitimate medical purpose." Appellee's Brief 54.‘

Therefore, the Government concluded, the newly

discovered evidence controverting Riggle's sex-for-drugs

allegations did not call the verdict into question.

The Third Circuit Court of Appeals rejected Dr.

Rottschaefer's challenges. Although Dr. Rottschaefer

relied heavily on this Court's recent decision in Gonzales

v. Oregon at oral argument, the Third Circuit did not

address or cite Gonzales in its opinion.

The Third Circuit began with the question of

statutory interpretation:

"Physicians are exempt from [21 U.S.C. §

841(a)(1)]to the extent that they act

lawfully, see United States v. Moore, 423

U.S. 122, 131 (1975), but they are subject to

criminal liability when their drug

prescribing and dispensing activities fall

‘outside the usual course of professional

practice,' id. at 124. The CSA's

implementing regulations provide that, to

be effective,a prescription 'must be issued

for a legitimate medical purpose by an

individual practitioner acting in the usual

course of his professional practice,’ and that

a person who knowingly issues an

ineffective prescription ‘shall be subject to

the penalties provided for violations of the

“The deviations from the standard of care argued by the

Government were characterized as such by the Government's

standard of care expert witness, Dr. Clough. Dr. Rottschaefer

denied at trial, and continues to deny, that he violated the civil

standard of care.

provision of law relating to controlled

substances.’ 21 C.F.R. § 1306.04(a). Thus,

the regulations clearly state that

prescribing drugs for other than a

‘legitimate medical purpose' is a basis for

criminal liability under the CSA." Pet.

App. 4a (emphasis added).

The Third Circuit found additional support for its

interpretation in the case law of the Fourth, Fifth, Sixth,

and Tenth Circuit Courts, which either implicitly or

explicitly have relied on 21 C.F.R. §1306.04 to import the

regulatory language ("legitimate medical purpose") into

the statute. Pet. App. 4a-6a. Because the Third Circuit

concluded that the statutory crime is proved by proof of a

lack of “legitimate medical purpose," it held that "the

’ prosecution acted well within the law when it defined

Rottschaefer's crimes in terms of prescribing narcotics for

‘no legitimate medical purpose." Pet. App. 6a. The Third

Circuit likewise held that Dr. Rottschaefer's trial

attorneys were not ineffective. Pet. App. 6a.

Regarding Dr. Rottschaefer's motion for new trial,

the Third Circuit agreed with the district court that

Riggle's handwritten letters were merely cumulative and -

impeaching. The Third Circuit rejected Dr.

Rottschaefer's argument that the letters were

exculpatory, reasoning, as did the Government, that the

theory behind Dr. Rottschaefer's convictions was not that

he traded prescriptions for sexual favors, but that his

prescription practices themselves were illegal. Pet. App.

9a. The Third Circuit further reasoned that, because

fellow inmate Peterson testified that Riggle told Peterson

that she lied about having sexual encounters with Dr.

Rottschaefer, the detailed evidence of fabrication in the

letters “might have been more compelling than Peterson's

testimony” but "would not have added any new facts to

the jury's calculus, and is therefore ‘merely cumulative."

Pet. App. 10a-1la. Finally, the Third Circuit reiterated

its belief that the jury's verdict was not based on a theory

that Dr. Rottschaefer traded-prescriptions for sexual

favors, and concluded that the letters did not carry a

probability of affecting the verdict. Pet. App. 1la-12a.

The Third Circuit affirmed Dr. Rottschaefer's

convictions, and remanded for resentencing in light of

United States v. Booker, 543 U.S. 220 (2005).

REASONS FOR GRANTING THE PETITION

On the first question presented, this case involves

the criminalization of alleged malpractice and the

importance of, "limiting criminality * * * to reach only

those with the level of ‘culpability * * * we usually require

in order to impose criminal liability."" Arthur Andersen

LLP v. United States, 544 U.S. 696, 706 (2005), quoting

United States v. Aguilar, 515 U.S. 593, 602 (1995).

This case is a counterpart to Gonzales v. Oregon,

546 U.S. __, 126 S.Ct. 904 (2006).° In Gonzales, the

Government used the "legitimate medical purpose"

regulation of 21 C.F.R. §1306.04 to claim an

extraordinary grant of power, to establish a national

standard of care that precluded writing prescriptions for

Schedule II controlled substances under Oregon's Death

With Dignity Act. In this case, the Government

interprets the regulation to establish the community

standard of care, as defined by the Government's expert,

as the conviction standard. Although this Court held in

Gonzales that the regulation does nothing more than

parrot other statutory language, the Government uses

that regulation to relieve itself of its burden of proving

that a physician's conduct is "outside the course of

professional practice," an element of the offense of

unlawful distribution of a controlled substance by a

physician.

The Government does that by interpreting the

regulatory language "without a legitimate medical

*Dr. Rottschaefer's counsel also served as counsel of

record for the physician and the pharmacist in Gonzales v.

Oregon.

purpose” to mean something other than the statutory

language “outside the course of professional practice."

Under the Government's interpretation, the regulatory

language has a meaning akin to the civil "standard of

care": adherence to generally accepted medical practices.

The Government thus establishes as its burden of proof a

mere deviation from the civil standard of care.

This Court, however, has interpreted "outside the

course of professional practice" to mean ceasing to act as

a physician, and acting instead as a drug pusher or drug

dealer, as conventionally understood.

The Government, through its interpretation of the

legitimate medical purpose regulation, has completely

relieved itself of the obligation to prove criminal drug

dealing in a physician prosecution. Under the

Government's construction, it can (and does) argue for

conviction on evidence that may not even prove civil

negligence, much less criminal drug dealing.

The second question presented, whether strict

application of the Third Circuit's factors test for a motion

for a new trial negates the intent of Rule 33, presents an

important question about the administration of justice.

It is undeniable that the allegations of a sex-for-

drugs exchange, if true, provide a valid basis for

conviction: if Dr. Rottschaefer was trading drugs for

sexual favors, he was intentionally acting outside the

course of professional practice. It is also undeniable that

the jury may have based its verdict on those allegations;

the grounds for the jury's verdict are unknown. Even if

the jury considered those allegations only as motive, the

jury would have given the evidence great weight. Dr.

Rottschaefer moved for a new trial after discovering

substantial evidence of personal letters hand-written by

Riggle, detailing her plan to fabricate the allegations that

she traded sexual favors for drugs and to perjure herself

at Dr. Rottschaefer's trial. Riggle did in fact testify to the

fabricated allegations at trial. The second question

presented is whether the Third Circuit's conclusion that

the letters were merely cumulative and impeaching and

thus did not warrant a new trial curtailed the analysis

into whether the interests of justice required a new trial

in light of that evidence.

As a final introductory note, Dr. Rottschaefer

counters the Third Circuit's suggestion that his

challenges are really about the sufficiency of the evidence.

See Pet. App. 3an1. That is not the issue. The legal

issues presented are that the Government argued one

invalid legal theory, and presented perjured testimony to

prove a valid second legal theory.

I. May the crime of unlawful distribution of

controlled substances be defined by the

"legitimate medical purpose" riulation and

equated with a violation of the civil standard

of care?

A. Statutory elements of the crime of unlawful

distribution of a controlled substance

In a prosecution against a state-licensed physician

registered with the DEA and therefore authorized to

distribute controlled substances, the crime of unlawful

distribution of a controlled substance has three elements:

the physician

(1) knowingly or intentionally

(2) distributes or dispenses a controlled substance

(3) outside the course of professional practice.

21 U.S.C. §§ 802(21), 841(a);° Moore, 423 U.S. at 140.

*It is a crime to (1) knowingly or intentionally (2)

distribute or dispense a controlled substance unless

“authorized” by the CSA. 21 U.S.C. §841(a). Authorization is

obtained by "registering" with the Attorney General. See 21

U.S.C. §822(a)(2). Physicians and pharmacists licensed by a

state and registered with the Attorney General are

“practitioners” and are authorized to dispense controlled

substances (see 21 U.S.C. § 829(a)&(b)) in "the course of

professional practice." See 21 U.S.C. § 802(21); see also, Moore,

423 U.S. at 140.

Drug distribution prosecutions against physicians

with DEA authorization to prescribe controlled

substances turn on the first and third elements: whether

the physician"knowingly or intentionally” distributed

drugs “outside the course of professional practice."” The

physician must specifically intend to divert drugs into

illicit channels. See, Moore, 423 U.S. at 141, 143 (a

physician commits criminal drug distribution when he

ceases to act as a physician and acts instead as a drug

"pusher"); Gonzales v. Oregon, 126 S.Ct. at 923 (the crime

under the CSA is "illicit drug dealing and trafficking as

conventionally understood") (emphasis added).

B. The Government's interpretation of the

regulation criminalizes malpractice

In contrast to the three statutory elements

discussed above, the Government frames its prosecutions

as a question of whether the physician had a legitimate

medical purpose for issuing the prescription and equates

that regulatory language with the civil standard of care.

"In Arthur Andersen LLP v. United States, this Court

explained:

"We have recognized with regard to similar

statutory language that the mens rea at least

applies to the acts that immediately follow, if

not to other elements down the statutory chain."

544 U.S. at 705.

The Court stressed the importance of “limiting criminality * * *

to reach only those with the level of ‘culpability * * * we usually

require in order to impose criminal liability." Jd. at 706,

quoting Aguilar, 515 U.S. at 602. Thus, because all physicians

authorized to prescribe controlled substances do so knowingly

or intentionally, the mens rea applies to whether the physician

intended to distribute the drugs outside the course of

professional practice.

The Government has steadfastly maintained,

when responding to the district court's sua sponte

objections (see footnote 1, supra) and when defending the

convictions on appeal (see Appellee's Brief 46, 51-54), that

the convictions were based on a finding that Dr.

Rottschaefer lacked a legitimate medical purpose in

issuing his prescriptions.

Under that theory, the Government elicited

lengthy testimony from DEA agent Colosimo and from its

expert, Dr. Clough, that Dr. Rottschaefer did not adhere

to generally accepted medical practices (the civil standard

of care) with the five patients at issue, such as evidence

that Dr. Rottschaefer did not refer the patients to

specialists or did not order particular tests. Dr. Clough

testified that Dr. Rottschaefer did not have a "legitimate

medical purpose” for the prescriptions at issue based on

his failure to adhere to the civil standard of care.* In

essence, the Government argued that the evidence of Dr.

Rottschaefer's deficient treatment proved a lack of a

"legitimate medical purpose," rendering the prescriptions

unlawful. To put a fine point on it, the Government

equated a deviation from the civil “standard of care"—that

is, failure to follow generally accepted medical

standards—with criminal activity.

A similar Government interpretation was at issue

®Dr. Clough was neither a fact witness nor an

independent medical examiner--he saw nothing and he

examined no one. Instead, Dr. Clough was an expert on the

standard of care. He offered his medical credentials, reviewed

only the four corners of selected patient charts and, based upon

his chart review, concluded that Dr. Rottschaefer deviated from

the standard of care and thus the prescriptions were issued

without a "legitimate medical purpose." Thus, the

Government's expert equated a deviation from the civil

standard of care with a lack of a “legitimate medical purpose," a

regulatory standard which the Government in turn equates, in

this case and others across the country, with the criminal

standard "outside the course of professional practice."

in Gonzales v. Oregon. There, the Attorney General

issued an Interpretive Rule declaring that physician-

assisted suicide as permitted by Oregon's Death With

Dignity Act had no "legitimate medical purpose," and

thus a prescription issued under the Act "violates the

[CSA]." Gonzales, 126 S.Ct. at 913-14.

This Court rejected the Government's argument.

The Court began by noting that the "legitimate medical

purpose” regulation, promulgated by the Attorney

General, merely "paraphrase[d] the statutory language"

of the CSA without incorporating any special expertise or

experience that the Government may have had. Jd. at

915-16. Consequently, the regulation did not affect the

interpretation of the statute: "Simply put, the existence

of a parroting regulation does not change the fact that the

question here is not the meaning of the regulation but the

meaning of the statute." Id. at 916.

The Court held that the regulation did not give the

Attorney General the authority to issue an interpretation -

that criminalized physician-assisted suicide as permitted

under Oregon law. /d. at 918, 922. The Court stated that

the Attorney General claimed "extraordinary" authority

in arguing that the regulation gave him the power "to

criminalize even the actions of registered physicians,

whenever they engage in conduct he deems illegitimate."

Id. at 918.

The Court further concluded that the Attorney

General's interpretation was not correct, because it

overstepped the boundaries of the CSA:

"The statute and our case law amply

support the conclusion that Congress

regulates medical practice insofar as it bars

doctors from using their prescription-

writing powers as a means to engage in

illicit drug dealing and trafficking as

conventionally understood. Beyond this,

however, the statute manifests no intent to

regulate the practice of medicine

generally." Id. at 923.

In Dr. Rottschaefer's case, the Government again

interprets the statute (21 U.S.C. §841) to criminalize the

actions of registered physicians who engage in conduct

the Government deems illegitimate, this time by

criminalizing a deviation from the civil standard of care,

without an affirmative finding of drug dealing. The

question is one of statutory construction: Does the

Government's interpretation run counter to Congress’

intent? The answer is yes.

OF Application of the Government's

interpretation in criminal cases results in

convictions for conduct that Congress did

not criminalize

The somewhat vague phrase "outside the course of

professional practice" has been given a narrow

interpretation by this Court. In United States v. Moore,

the Court observed that Congress’ intent in enacting the

CSA was to create a closed system of medical drug

distribution. A physician must be registered with the

DEA to obtain authorization to distribute controlled

substances. A physician who is not registered is not

authorized to distribute controlled substances and

therefore violates the CSA by doing so.

’ A registered physician is authorized to distribute

controlled substances "in the course of professional

practice." 21 U.S.C. §802(21). That is, a physician's

registration “authorizes transactions within ‘the

legitimate distribution chain' and makes all others

illegal." Moore, 423 U.S. at 141 (citation omitted). A

physician may prescribe drugs “only to act 'as a

physician." Jd. A physician who acts as a "pusher'--not

as a physician," violates the CSA. Id. at 143.

Thus, “in the course of professional practice"

simply means when the physician is acting as a

physician; i.e., when the prescriptions are issued in

medical channels. When a prescription is issued in a non-

medical channel--e.g., sold, or traded for goods or

services--criminal liability follows.

Conversely, the Government's interpretation of

"without a legitimate medical purpose" is not so narrowly

defined. In recent years, the Government has seized on

the notion of "legitimacy" to argue for criminal

convictions based on medical practices that do not

conform to generally accepted medical standards (i.e., the

"standard of care" applicable in civil actions) as

established by the Government's standard of care

witness. The problem, however, is that a medical practice

can deviate from generally accepted practices and still be

the practice of medicine. It can be malpractice, and still

be the practice of medicine. It can be negligent, or even

grossly negligent, and still be the practice of medicine.

To be a drug crime, and to support a criminal drug

conviction, the issuance of the prescription must not be

the practice of medicine; it must occur outside of medical

channels. The defendant must abandon his role as a

physician to act outside "the course of professional

practice." The Government's interpretation, however,

does not require the jury to find that much to convict.

Although the Government ostensibly brought a sex-for-

drugs criminal prosecution against Dr. Rottschaefer, the

Government in fact prosecuted a malpractice-type theory

of criminal liability.

By lowering the bar for conviction, the

Government's interpretation captures conduct that

Congress did not criminalize. Rather than having to

prove that the physician "ceased to act as a physician,"

(Moore), the Government may win a conviction under its

interpretation of the regulatory language by proving that

the physician did not follow "generally accepted" medical

guidelines. That wider net captures at least four groups

of physicians who are not, in fact, dealing drugs: those

who practice alternatives, those who are on the cutting

edge, those who are negligent (and thus in violation of the

civil standard of care--generally defined as adherence to a

locality's accepted medical practices--and liable for

malpractice, but not dealing drugs), and even those who

are not negligent but are in violation of the Government's

definition of the standard of care, which at times is stated

more harshly than the standard of care under civil law.

This is not a localized problem. Examples

abound.’ In United States v. Alerre, 430 F.3d 681 (CA4

2005), cert. denied, 126 S.Ct. 1925 (2006), a South

Carolina case, the Government defined a "legitimate

medical purpose" as "medical necessity" or conformity to

“proper procedures." The Government's expert witness

testified that when he said the prescriptions lacked a

“legitimate medical purpose," he meant that the issuing

physician "failed to adhere to generally accepted medical

standards." Id. at 686.

In United States v. Williams, 445 F.3d 1302 (CA11

2006), a Florida case, the Government's expert witness

defined "not the legitimate practice of medicine" by

reference to the "fail{ure] to meet usual standards of

care." Id. at 1305. In rejecting Dr. Williams's challenges

on appeal, the Eleventh Circuit interpreted United States

v. Moore as approving an instruction that the criminal

law requires physicians to prescribe "in accordance with a

standard of medical practice generally recognized and

accepted in the United States." Id. at 1309.

In United States v. McIver, Fourth Circuit Case

No. 05-4884 (oral argument pending), another South

Carolina case, the Government argued for conviction (and

obtained jury instructions) based on deviations from "the

norms of professional practice."

In United States v. Feingold, ___ F.3d __ (CA9 2006)

(Ninth Circuit Case No. 05-10037) (discussed infra), an

Arizona case, the Government explicitly argued that this

Court in Moore did not "determine that the phrase

‘outside the course of professional practice,’ for purposes

of a conviction under the CSA, specifically means ‘for

intentional diversion to illegitimate channels." United

States v. Feingold, Appellee's Brief 24. Rather, the

Government argued, the statute "imports considerations

*In each of the four cases discussed below to illustrate

the problem, Dr. Rottschaefer's counsel of record consulted or

served as appellate counsel for the physicians.

of medical legitimacy and accepted medical standards,"

rendering the physician subject to a “legitimate medical

purpose” requirement to avoid criminal liability. Id. at

25, quoting United States v. Boettjer, 569 F.2d 1078, 1081

(CA9 1978).”°

The similarity in these misdirected prosecutions

may be traced to a single Government source document.

In October 2002, the Department of Justice (DOJ)

published on its website a Quick Reference Card intended

to "serve as a basic guide to prosecuting prescription drug

diversion cases." Quick Reference Card, App 50-51, Pet.

App. 23a. (Dr. Rottschaefer was-indicted eight months

after its publication, on June 2, 2003.) The Quick

Reference Card cites 21 C.F.R. §1306.04 for the legitimate

medical purpose regulation, then provides:

"Any individual practitioner who issues or

fills a prescription knowing that the

prescription was not issued for a legitimate

medical purpose in the usual course of

professional treatment (or for legitimate

and authorized research), shall be subject

to penalties provided for violations of the

controlled substances law." Pet. App. 26a.

Having thus defined the crime to include a

"legitimate medical purpose” element, the Quick :

Reference Card further defines that element as follows:

'°A fifth example is the recently-tried state case of

Pennsylvania v. Heberle. In discussing the verdict of not guilty

with the media, Senior Deputy State Attorney General Doug

Wright described the difficulty of proving his case as follows:

"You are dealing with a standard-of-care argument. You have

conflicting testimony from experts. It is difficult to discern

what is the appropriate standard of care." Lisa Thompson,

Doctor Gains Acquittal, Erie Times-News (May 23, 2006)

(accessed at www.goerie.com on May 30, 2006) (emphasis

added).

"What is a legitimate medical purpose?

A physician is acting with a legitimate

medical purpose when he or she prescribes

medical treatments that are in strict

compliance with well-established and

generally accepted medical guidelines,

and administers medical treatments

that appropriately and correctly

address and relieve the present

medical condition." Pet. App. 26a-27a

(bold print in original)."

By this logic, the Government interprets 21 U.S.C.

§841(a) to criminalize any deviation from "strict

compliance with well-established and generally accepted

medical guidelines.” Note that this definition requires not

only compliance with the civil standard of care, but strict

compliance, to avoid criminal liability, and further

requires the physician to achieve the desired result (to

"correctly * * * relieve the present medical condition").

Tellingly, this harsh rephrasing of the civil standard of

care establishes a standard that would not even prove

civil malpractice. A physician need only show

compliance, not strict compliance, with generally

accepted medical guidelines to avoid malpractice liability,

and need not achieve perfection on each treatment

attempt. In Pennsylvania, where Dr. Rottschaefer

practiced medicine, the standard of care requires only

that a physician not make an “unwarranted departure

from generally accepted standards of medical practice

resulting in injury to a patient/[.]" Toogood v. Owen J.

Rogal, D.D.S., P.C., 573 Pa. 245, 254-55 (2003).

As these examples illustrate, the Government's

interpretation of "legitimate medical purpose" does not

have the same nieaning as “outside the course of

professional practice." By framing its prosecutions

''The Quick Reference Card has been removed from

DO's website.

around its interpretation of the regulatory phrase

"legitimate medical purpose," the Government seeks, and

obtains, convictions based on alleged violations of the civil

standard of care, and relieves itself of the burden of

proving drug dealing. The Government's interpretation is

invalid. "[W)hen Congress wants to regulate medical

practice in the given scheme, it does so by explicit

language in the statute." Gonzales, 126 S.Ct. at 924. The

Government's interpretation, which permits conviction

based on evidence of substandard medical practices as

proof of illegitimacy, must fail.

D. The Third Circuit's decision in this case is in

conflict with the Ninth Circuit's decision in a

similar physician prosecution

Dr. Rottschaefer contended that the prosecution

and defense commingled the civil standard of care and

the criminal conviction standard so extensively that the

civil standard of care became the conviction standard.

Dr. Rottschaefer argued that the Government

accomplished that through interpreting a “legitimate

medical purpose" to mean the civil standard of care.

Appellant's Brief 35 (discussing and providing citations to

the record of the repeated instances in which the

Government's expert Dr. Clough defined "legitimate

medical purpose" by reference to the standard of care).

Dr. Rottschaefer challenged that trial strategy on

appeal, as prosecutorial misconduct and as ineffective

assistance of defense counsel. In rejecting that challenge,

the Third Circuit addressed only the regulatory language,

and ignored the Government's interpretation of that

language and its application at trial. The Third Circuit

quoted the relevant statute, 21 U.S.C. §841(a), and the

"legitimate medical purpose" regulation, 21 C.F.R.

§1306.04, to conclude that "the regulations clearly state

that prescribing drugs for other than a ‘legitimate

medical purpose’ is a basis for criminal liability under the

CSA." Pet. App. 4a.

The Third Circuit summarized Dr. Rottschaefer's

argument as follows:

"Rottschaefer's prosecutorial

misconduct and ineffective assistance of

counsel claims are based on his theory that

he was improperly tried and convicted

under a medical malpractice or negligence

standard, rather than the higher standard

of proof required for criminal convictions."

He argues that the 'no legitimate medical

reason’ standard used by the prosecution

throughout the trial, without defense —

objection, equates to a civil, rather than a

criminal, standard of liability.

"This argument finds no support in

the law.” Pet. App. 3a-4a (footnote

omitted). |

The Ninth Circuit, however, recently responded

differently to similar arguments in United States v.

Feingold, __ F.3d __ (CA9 2006). There, the defendant

argued that the jury instructions commingled the civil

standard of care and the criminal conviction standard:

"Dr. Feingold argues that, by using the professional

‘standard of care’ as a benchmark in the jury instructions,

the district court allowed the jury to convict simply upon

finding that he had been a negligent doctor." Id. at__

(slip op., at 8031).

The Ninth Circuit phrased the "difficult and

important" question presented as: "{[W]hether a

practitioner's conviction under 21 U.S.C. §841(a) is valid

if it rests only on a finding of intentional malpractice."

Id. at___ (slip op., at 8032). The Ninth Circuit answered

no.

The Ninth Circuit recognized that its case law

required a careful examination of how the civil standard

of care was used in a criminal prosecution. Evidence

regarding the civil standard of care may be relevant and

admissible so that the jury may compare the defendant's

conduct to the applicable standard of care, but a district

court “impermissibly lower|s] the standard for criminal

liability by instructing the jury to determine whether a

practitioner-defendant has complied, or attempted to

comply, with the standard of care." Jd. at ___ (slip op., at

8033). é

Under that rationale, the Ninth Circuit would

have rejected the idea that the Government, which used

its expert witness to equate the civil standard of care

with a lack of "legitimate medical purpose," did not err in

applying that standard simply because it was couched in

a phrase that has been accepted in other applications.

E. The error is not likely to be corrected by the

circuit courts

The circuit courts of appeals are not likely to

correct the error in allowing application of the

Government's interpretation, because, as the Third

Circuit reasoned in this case (see, Pet. App. 4a-6a),

acceptance of convictions based on "legitimate medical

purpose" is entrenched in circuit court case law.

The Second, Fourth, Fifth, Sixth, Eight, Tenth,

and Eleventh Circuits all have accepted reliance on the

"legitimate medical purpose” language in drug

prosecutions of physicians. See, e.g., United States v.

Nelson, 383 F.3d 1227, 1231-32 (CA10 2004) ("A

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"; citing Moore and 21 C.F.R.

§1306.04, "the governing regulation"); United States v.

Pedrick, 181 F.3d 1264, 1268 n 8 (CA11 1999) ("it is

illegal for a practitioner * * * to issue a prescription for a

controlled substance without a legitimate medical

purpose and outside the usual course of his professional

practice"); United States v. Ekinci, 101 F.3d 838 (CA2

1996) (characterizing the crime under 21 U.S.C. §841(a)

as distributing controlled substances “without a

legitimate medical purpose" and upholding conviction

based on indictment and jury instructions phrased in

those terms); United States v. Daniel, 3 F.3d 775, 778

(CA4 1993) ("The indictment's allegations that the

attempted distributions or dispensations were 'not ... for a

legitimate medical purpose’ satisfy" the third element of

the crime); United States v. Norris, 780 F.2d 1207, 1209

(CA5 1986) (the third element of the crime is distributing

“other than for a legitimate medical purpose and in the

usual course of his professional practice"; that element

derives from 21 C.F.R. §1306.04); United States v. Kirk,

584 F.2d 773, 784 (CA6 1978), cert. denied, 439 U.S. 1048

(stating: "It has been held that there is no difference in

the meanings of the statutory phrase, 'In the usual course

of professional practice’ and the regulations’ phrase,

‘legitimate medical purpose," citing United States v.

Plesons, 560 F.2d 890, 897 (CA8 1977), cert. denied, 434

US. 966, and United States v. Rosenberg, 515 F.2d 190,

197 (CA9 1975), cert. denied, 423 U.S. 1031; and

subsequently quoting 21 U.S.C. §841(a)(1) and 21 C.F.R.

§1306.04(a) in support).

The Third Circuit relied on this body of case law to

find no error in the Government's use of the regulatory

language in this case, notwithstanding the manner in

which the Government interpreted and applied the

regulatory language in this prosecution. Pet. App. 4a-6a.

The circuit courts are not likely to correct the

erroneous Government interpretation in light of the

precedents that rely on the "legitimate medical purpose"

language in their own case law. This issue requires

review and correction from this Court.

F. Summary

In short, the Government interpreted the

regulation to establish a new definition of the crime of

unlawful drugd ‘ribution. That it could not do.

Gonzales, 126 S.ut. at 918. Under the Government's

interpretation, the Government does not need to prove

that the physician ceased to act as a physician; the

Government only needs to prove that the physician's

practices fell below the mean.

Physicians throughout the country have been

similarly tried under the erroneous Government

interpretation. The error is entrenched.

Because Dr. Rottschaefer and other physicians

face prosecutions and criminal drug distribution

convictions that may rest on substandard medical

practices rather than drug dealing, review is warranted.

This case presents the Court with an opportunity to

announce that a criminal conviction cannot be had based

on substandard medical practices claimed to violate the

regulation and thus the CSA.

Il. Has the "interest of justice" standard of

Federal Rule of Criminal Procedure Rule 33

been circumvented by the judicially-created

factors test?

The second issue in this case presents an

important question about the administration of the law

and the integrity of a criminal trial in the federal system.

Just before Dr. Rottschaefer's trial began, Jennifer

Riggle ended her relationship with her incarcerated

boyfriend, Barron Shelton. Upon Shelton's release from

prison several months later, Shelton delivered to Dr.

Rottschaefer's attorneys 72 letters (consisting of 529

pages) hand-written by Riggle to Shelton. Those letters,

written in the months of investigation, grand jury, and

trial preparation in Dr. Rottschaefer's prosecution, detail

Riggle's plan to fabricate allegations that she exchanged

sexual favors for prescriptions with Dr. Rottschaefer, the

deal for a shorter sentence that she made for that

testimony, her perjury to the grand jury, her plan to

commit perjury at the trial, and her anxiety over

committing perjury and fear that her "secret" would be

discovered. See, Pet. App. 36a-87a (excerpts of letters).

For example, Riggle wrote:

"Listen I have a question about my case. I

think they want to subpeaned [sic] me to a

grand jury about the doctor I was seeing.

They're saying he was bribing patients with

sex for pills, but it never happened to me.

DEA said they will cut my time for a good

testimony. I don't want to be a snitch but

what should I do?" Pet. App. 44a (emphasis

added).

Riggle did, in fact, perjure herself at Dr. Rottschaefer's

trial by testifying to the fabricated allegations that Dr.

Rottschaefer gave her prescriptions in exchange for

sexual favors.

Upon receiving those letters, Dr. Rottschaefer's

attorneys moved for a new trial. Without awaiting

responsive pleadings or holding a hearing, the district

court ruled that the letters were "merely cumulative and

impeaching" and did not warrant a new trial.

Dr. Rottschaefer challenged that ruling on appeal,

arguing for a new trial based on Federal Rule of Criminal

Procedure 33's “interest of justice" standard, the Third

Circuit's five factor test for granting a new trial,’ and the

appellate courts’ supervisory authority. Appellant's

Supplemental Brief at 10-43. The Third Circuit ruled

that the newly discovered evidence of Riggle's perjury

was merely cumulative and impeaching and thus did not

pass the factors test and did not require a new trial. The

Third Circuit also declined to exercise its supervisory —~

powers to order a new trial.

The Third Circuit's strict application of the

judicially-created factors test has subverted the intent of

Rule 33. Under the Rule, a new trial should be granted

when the interest of justice so requires. The Third

Circuit's formulaic application of the factors test failed to

"Those factors are: the evidence must in fact be newly

discovered, the movant must have acted diligently, the evidence

relied upon must not be merely cumulative or impeaching, the

evidence must be material to the issues, and the evidence must

be of such nature that it would probably produce an acquittal.

United States v. Iannelli, 528 F.2d 1290, 1292 (CA3 1976).

consider the interest of justice, and in so doing failed to

serve the interest of justice.

The Seventh Circuit recognized the problem with a

mechanical application of the factors test in United States

uv. Taglia, 922 F.2d 413 (CA7 1991). As the court

described, the "judicial language" that "newly discovered

evidence that is merely impeaching is not a permissible

ground for a new trial" appears in "countless cases," but

"illustrates the tendency to overgeneralize." Jd. at 415.

The court cautioned against taking the overgeneralized

language "at face value," for: “Nothing in the text or

history of Rule 33, or of the cognate civil rule (Rule 60(b)),

supports a categorical distinction between types of

evidence; and we cannot see the sense of such a

distinction." Id. Where the interest of justice requires a

new trial, one should be granted. Jd. That is the only

requirement of Rule 33.

"It is easy to confuse a practice with a rule.

The practice has been to deny new trials

where the only newly discovered evidence

was impeaching. But the practice should

not be taken to imply a rule that even if the

defendant proves that his conviction almost

certainly rests on a lie, the district court is

helpless to grant a new trial." Id.

Ultimately, however, the court held that Taglia was not

the "rare case" in which impeaching evidence required a

new trial in the interest of justice. Id. at 416.

This is the rare case. Rarely will a court be

confronted with more forthright, undeniable evidence

that a lead witness's trial testimony was perjured than in

this case. Riggle's 72 handwritten letters, 22 of which

discuss Dr. Rottschaefer's case and her plan to commit

perjury, offer a detailed insight into the witness's

fabrications and motivation to lie. See, Pet. App. 36a-

87a. The revelation that Dr. Rottschaefer did not give

Riggle prescriptions in exchange for sexual favors, and,

more importantly, of Riggle's planned perjury creates the

compelling case in which the evidence impeaching Riggle

requires a new trial in the interest of justice.”

Even as evidence rebutting motive, "a jury would

have given this evidence great weight." House v. Bell,

547 U.S. __, 126 S.Ct. 2064, 2079 (2006). In House, the

prosecution had argued that a sexual assault was the

defendant's motive for murder. When DNA evidence

later cleared him of the sexual assault, the Government

argued that the evidence was immaterial, because neither

sexual contact nor motive were elements of the offense.

This Court disagreed that the evidence was immaterial:

"When the only direct evidence of sexual assault drops

out of the case, so, too, does a central theme in the State's

narrative linking House to the crime." Jd. Here, too, the

jury likely gave the perjured testimony great weight, and

without it, the central theme of the Government's

narrative (that Dr. Rottschaefer distributed prescriptions

in order to receive sexual favors) falls away."* The

'3Dr, Rottschaefer assumes for the purpose of argument

that the letters were merely impeaching, as the lower courts

held. Even construed as merely impeaching, the letters

warrant a new trial in the interest of justice.

Dr. Rottschaefer notes, however, that he continues to

believe that the letters are exculpatory, as he argued below.

Under the correct legal standard, by which the crime requires

proof that the physician ceased to act as a physician and acted

as a conventional drug dealer, the allegations of a sex-for-drug

exchange presented powerful evidence, and the newly-

discovered letters refuting those allegations are exculpatory.

“Moreover, as this Court recognized in House:

"Law and society, as they ought to do,

demand accountability when a sexual offense

has been committed, so not only did this

evidence link House to the crime; it likely was a

discovery that Riggle's allegations were perjured requires

a new trial.

By applying its factors test as a substitute for, but

ultimately without regard to, the interest of justice test of

Rule 33, the Third Circuit abrogated the purpose of the

Rule. The interest of justice is not served by protecting a

verdict rendered upon substantial perjured testimony.

The interest of justice demands a new trial. That is all

Rule 33 requires.

This Court should allow review to remind the

circuit courts that judicially-created tests must always be

applied to serve the statutes, rules, or regulations from

which they derive; they should not move the court away

from the language it is intended to serve. This case

provides an appropriate vehicle for that reminder, for the

stark evidence of perjury at the heart of this case requires

_ a new trial in the interest of justice.

CONCLUSION

Dr. Rottschaefer respectfully urges this Court to

grant the petition for a writ of certiorari.

Respectfully submitted,

ELI D. STUTSMAN

Counsel of Record

621 SW Morrison

Thirteenth Floor

Portland, OR 97205

July 2006 (503) 274-4048

factor in persuading the jury not to let him go

free." Id.

Similar considerations apply in this case, where the

Government's theory was that Dr. Rottschaefer manipulated

and exploited his patients for sexual gratification.

TABLE OF CONTENTS

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Appendix A (court of appeals opinion,

| Ae eee la

Appendix B (judgment, dated

April 27, 2006..... SPS PEO ES Pe Py ES Ee 14a

Appendix C (federal statutory provisions) ......... 16a

Appendix D (federal regulatory provisions) ........ 2la

Appendix E (Quick Reference Card 2002) ......... 23a

Appendix F (excerpts of Riggle letters)............ 36a

APPENDIX A

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 04-4015 and 05-1229

UNITED STATES OF AMERICA,

BERNARD ROTTSCHAEFER,

Appellant

Appeals from the United States District Court

for the District of Western District of Pennsylvania

(D.C. Criminal 03-cr-00162)

District Judge.: Honorable Gary L. Lancaster

Argued March 3, 2006

Before: RENDELL, BECKER and GREENBERG,

Circuit Judges.

(Filed: April 27, 2006)

Irving M. Green

1092 Fifth Avenue

New Kensington, PA 15608

Eli D. Stutsman [ARGUED]

13th Floor

621 Southwest Morrison

Portland, OR 97205

John D. Ceraso

1725 Fifth Avenue

Arnold, PA 15068-4417

Counsel for Appellant

Mary M. Hotghton [ARGUED]

Laura S. Irwin

Paul M. Thompson

Office of the U.S. Attorney

700 Grant Street, Suite 400

Pittsburgh, PA 15219

Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

Bernard Rottschaefer, M.D. challenges his

convictions and sentence on 153 counts of a 208-count

indictment charging unlawful distribution of controlled

substances, in violation of 21 U.S.C. § 841(a)(1). At trial,

five of Rottschaefer's patients testified that he fed their

drug addictions by prescribing them Xanax, Oxycontin,

and other addictive painkillers; four of them testified that

they performed sexual favors in exchange for the

prescriptions. Rottschaefer seeks a new trial based on

alleged prosecutorial misconduct, ineffective assistance of

counsel and evidence that a government witness perjured

herself at trial. We conclude that these claims lack merit

and will affirm Rottschaefer's convictions. We will vacate

his sentence and remand for resentencing in accordance

with United States v. Booker, 543 U.S. 220 (2005).

F 7

Rottschaefer's prosecutorial misconduct and

ineffective assistance claims are based on his theory that

he was improperly tried and convicted under a medical

malpractice or negligence standard, rather than the

higher standard of proof required for criminal

convictions.’ He argues that the "no legitimate medical

reason" standard used by the prosecution throughout the

'We note that these claims provide rather awkward vehicles for

Rottschaefer's substantive arguments. Rottschaefer's real

contentions are that the law was somehow confused in the

District Court and that the evidence presented was insufficient

to support a conviction under the statute. Rather than

challenging the jury instructions or the sufficiency of the

evidence directly, however, he chose to proceed on prosecutorial

misconduct and ineffective assistance grounds.

trial, without defense objection, equates to a civil, rather

than a criminal, standard of liability.

This argument finds no support in the law. The

Controlled Substances Act ("CSA"), under which

Rottschaefer was convicted, provides: "Except as

authorized by this subchapter, it shall be unlawful for

any person knowingly or intentionally—(1) to

manufacture, distribute, dispense, or possess with intent

to manufacture, distribute, or dispense, a controlled

substance." 21 U.S.C. § 841(a)(1). Physicians are exempt

from this provision to the extent that they act lawfully,

see United States v. Moore, 423 U.S. 122, 131 (1975), but

they are subject to criminal liability when their drug

prescribing and dispensing activities fall “outside the

usual course of professional practice," id. at 124. The

CSA's implementing regulations provide that, to be

effective, a prescription "must be issued for a legitimate

medical purpose by an individual practitioner acting in

the usual course of his professional practice," and that a

person who knowingly issues an ineffective prescription

"shall be subject to the penalties provided for violations of

the provisions of law relating to controlled substances."

21 C.F.R. § 1306.04(a). Thus, the regulations clearly

state that prescribing drugs for other than a "legitimate

medical purpose" is a basis for criminal liability under

the CSA.

Moreover, courts of appeals frequently use the "no

legitimate medical purpose" standard to define physician

liability under § 841(a)(1). For example, the Fifth Circuit

Court of Appeals stated the elements of the offense as

follows:

To convict Dr. Norris of violating 21 U.S.C.

§ 841(a)(1), the government was required to

prove “(1) that he distributed or dispensed

a contrelied substance, (2) that he acted

knowingly and intentionally, and (3) that

he did so other than for a legitimate

medical purpose and in the usual course of

his professional practice.”

United States v. Norris, 780 F.2d 1207, 1209 (5th Cir.

1986) (quoting United States v. Rosen, 582 F.2d 1032,

1033 (5th Cir. 1978)). The Court explained that,

"[a]lthough the third element is not expressly required by

§ 841," it derives from the language in the "pertinent

regulations" quoted above. /d. (quoting 21 C.F.R. §

1306.04(a)). Other courts adopt the same approach. See,

e.g., United States v. Nelson, 383 F.3d 1227, 1231-32

(10th Cir. 2004) ("A 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. Voorhies, 663 F.2d 30, 33 (6th Cir. 1981)

(rejecting defendant's challenge to jury instruction based

on 21 C.F.R. § 1306.04 and incorporating "other than a

legitimate medical purpose" standard).

Finally, "there is considerable room to doubt

whether" the distinction between the "no legitimate

medical reason" and the “outside the usual course of

professional practice" standards “is of any importance."

Nelson, 383 F.3d at 1231. Several courts have held that

"there is no difference in the meanings of the statutory ~

phrase, ‘[i]n the course of professional practice’ and the

regulations' phrase, ‘legitimate medical purpose," United

States v. Kirk, 584 F.2d 773, 784 (6th Cir. 1978) (citing -

cases); the Fourth Circuit Court of Appeals goes even

farther, holding that the "withou * a medical purpose"

standard that Rottschaefer challenges is "more strict than

[the "outside the usual course of professional practice"

standard] required by Moore." United States v. Cuong, 18

F.3d 1132, 1138 (4" Cir. 1994) (emphasis added). As the

Nelson court observed: °

It is difficult to imagine circumstances in

which a practitioner could have prescribed

controlled substances within the usual

course of medical practice but without a

legitimate medical purpose. Similarly, it is

difficult to imagine circumstances in which

a practitioner could have prescribed

controlled substances with a legitimate

medical purpose and yet be outside the

usual course of medical practice.

383 F.3d at 1231.

Thus, the prosecution acted well within the law

when it defined Rottschaefer's crimes in terms of

prescribing narcotics for "no legitimate medical reason."

Rottschaefer has not explained to our satisfaction how an

improper standard was applied in his trial at all, much

less how the application of that standard amounted to

prosecutorial misconduct or ineffective assistance of

counsel. We will not reverse his convictions on these

grounds.

Il.

Rottschaefer also appeals the District Court's

denial of his motion for a new trial under Fed. R. Crim. P.

33. Rottschaefer moved for a new trial based on evidence,

discovered after trial, that one of his former patients

perjured herself at his trial. The patient, Jennifer Riggle,

had testified at trial that she traded sex with

Rottschaefer for various prescriptions. After trial,

Rottschaefer's attorney discovered 529 pages of

handwritten correspondence between Riggle and her

then-boyfriend in which Riggle denied having sex with

Rottschaefer and explained that she had agreed to lie in

order to receive a more favorable sentence on drug

charges pending against her in state court. In the letters,

Riggle describes conversations in which DEA agents

suggested that she would be rewarded for "good"

testimony’ and explains her decision to go along with

their suggestions."

The District Court denied Rottschaefer's motion.

Although he found "no reason to doubt [the letters']

authenticity,” the District Court Judge concluded that the

*"They're saying he was bribing patients with sex for pills, but it

never happened to me. DEA said they will cut my time for good

testimony. I don't want to be a snitch but what should I do?

Everyone else is testifying against him."

*"1 had just prayed & asked God to give me the confidence to be

able to lie about the Dr. just this once. I am not a good liar &

I'm scared. The only reason I'm doing it is cause he's pretty

much already had & he doesn't deserve to be practicing. He has

ruined many lives & some people even O.D.'d on the Oxy's."

letters did not justify a new trial because they did no

more than provide impeachment material to the defense

and were cumulative of other evidence adduced at trial.

Because they were not made under oath, Riggle's

statements in the letters would have been admissible

only for impeachment purposes; the evidence was

cumulative because one of Rottschaefer's witnesses had

testified at trial that Riggle had told her that she had lied

about committing sex acts with Rottschaefer to receive a

deal from the DEA.

"Rule 33 motions for a new trial are directed to the

district court's discretion, and our function on appeal is to

decide whether the trial judge abused that discretion or

failed to exercise it." United States v. Iannelli, 528 F.2d

1290, 1292 (3d Cir. 1976). Although we find the District

Court's analysis somewhat perfunctory, we are not

convinced that it abused or failed to exercise its discretion

in denying Rottschaefer's motion.

A district court may only grant a new trial on the

basis of newly discovered evidence where five

requirements are met:

~ the evidence was, in fact, newly discovered, i.e.,

discovered since trial;

° facts are alleged from which the court can infer

diligence on the part of the movant;

e the new evidence is not "merely cumulative or

impeaching";

* the evidence is material to the issues involved; and

. the evidence is such, and of such nature, that on a

new trial it would probably produce an acquittal.

United States v. Saada, 212 F.3d 210, 216 (3d Cir. 2000).

The defendant bears a heavy burden’ in meeting these

requirements." Id. (quoting United States v. Ashfield, 735

F.2d 101, 112 (3d Cir. 1984)).

As an initial matter, we agree with the District

Court's assessments of the letters as "cumulative" and

"impeaching." But we must consider several arguments

that the Court declined to address as to why the letters

are not "merely cumulative or impeaching.” First,

Rottschaefer argues that the letters are "exculpatory."

Cf. Saada, 212 F.3d at 216 (implying that evidence that is

"exculpatory" is not "only impeaching"). This contention

lacks merit. While the letters unquestionably undermine

Riggle's testimony that she traded sexual favors for

prescriptions, they do not exculpate Rottschaefer from the

underlying offense. The crime for which Rottschaefer

was convicted was not, as he claims, trading drugs for

sex. Rather, he was convicted of unlawfully distributing

controlled substances outside the course of professional

practice. If anything, Riggle's letters reinforce other

evidence that Rottschaefer's prescription practices fell

outside of the bounds of ordinary professional practice.*

Rottschaefer also argues that the evidence of

Riggle's perjury raises doubts about the testimony of

three other government witnesses. Evidence introduced

‘For example, Riggle’s letters state: "[Rottschaefer] has ruined

many lives & some people even O.D.'d on the Oxy's," and "See,

the doctor is still in the wrong for not wanting to see Xrays of

my back before prescribing those pills. All he did vas have me

bend over to feel my spine & just by that he decided I was ina

lot of pain.”

at trial established that the four women who testified

that they exchanged sex for drugs with Rottschaefer,

including Jennifer Riggle, knew each other and worked

together to procure Oxycontin from Rottschaefer to abuse

and sell. Rottschaefer also claims that each of the four

women initially denied having sexual contact with

Rottschaefer. He argues that evidence of Riggle's perjury

would have raised an inference that the other witnesses

were also lying.

This argument fails because the record already

contained evidence of Riggle’s perjury from which

Rottschaefer could have argued that the testimony of the

other witnesses was tainted. As the District Court

pointed out, Deborah Peterson, who had been

incarcerated at Westmoreland County Prison with Riggle,

testified at trial that Riggle had confided in Peterson

about lying in Rottschaefer's case. Specifically, Peterson

said, "what [Riggle] ended up telling me was that she flat

outright lied about having committed some sexual act

with Dr. Rottschaefer to receive a reduced sentence or

possibly no penalty at all." When defense counsel

questioned Peterson further about Riggle's motives for

lying, Peterson responded:

[T]o state like pretty much in exact terms

the reason and how she came about doing it

was as she was being questioned by the

federal agents, I guess, in prison,

insinuated that-about some kind of sexual

acts could this have possibly occurred, and

she took it as an opportunity—she seen it as

an opportunity, and that's exactly how she

10a

stated it to me, to help herself if she would

go along with that.

Peterson's testimony calls the other witnesses’ testimony

into question in precisely the same manner as Riggle's

letters. Of course, evidence of Riggle's perjury in the form

of Riggle's own letters might have been more compelling

than Peterson's testimony. But it would not have added

any new facts to the jury’s calculus, and is therefore

"merely cumulative."

Furthermore, although the District Court did not

discuss this point, we note that the evidence proffered by

Rottschaefer after trial would not "probably produce an

acquittal." Saada, 212 F.3d at 216. As discussed above,

sexual contact with patients was not an element of the

convicted offense. A review of the verdict demonstrates

that the jury understood this point—it acquitted

Rottschaefer of several counts despite testimony of sexual

favors, and convicted him of others with respect to which

there was no evidence of sexual contact.> On this record,

*Rottschaefer's trial counsel acknowledged this point at

Rottschaefer's sentencing hearing, when he said:

If you look at that verdict, they acquitted him, I

believe, of 53 counts involving t 4e same five

women who testified for the go. ernment

because of various reasons that the Court is

aware of. The jury apparently to reach that

kind of verdict, if you analyze that verdict in

any way at all, wasn't based on sex for drugs. It

was based on the testimony of a supposedly

expert witness for the government who went

through all these multitude of charts and went

lla

we cannot conclude that further evidence that Riggle did

not engage in sexual activity with Rottschaefer would

have affected the jury's verdict.

Moreover, the record contains sufficient evidence,

independent of Riggle's testimony, to uphold

Rottschaefer's convictions. The government's expert, Dr.

Douglas Clough, testified that there was no evidence in

Riggle's medical records of pain that would justify

prescribing OxyContin or other addictive narcotics. He

also noted that Rottschaefer never ordered or performed

diagnostic tests regarding the back problem for which he

prescribed the drugs. Finally, Dr. Clough opined that

there was "no legitimate reason to keep prescribing the

chronic long-acting potentially addicting narcotic . . .

without an attempt. . . to evaluate and treat the back

pain without using some therapeutic modality other than

the chronic long-acting narcotic." This testimony,

particularly in conjunction with the evidence that

Rottschaefer had issued prescriptions to other women for

apparently illicit purposes, amply supports the jury's

guilty verdicts on the charges that Rottschaefer

prescribed narcotics to Jennifer Riggle outside the usual

course of professional practice.

Thus, although we acknowledge that the District

Court could have engaged in a more thorough analysis of

Rottschaefer's claims, we cannot conclude that it abused

its discretion in denying his Rule 33 motion for a new

trial. We also decline Rottschaefer's invitation to exercise

our “supervisory powers," pursuant to Mesarosh v. United

into expressing his opinion as to what was

required in order to issue a prescription ....

12a

States, 352 U.S. 1 (1956), to grant him a new trial. We do

not think that the situation before us is comparable to

Mesarosh. We will accordingly affirm the District Court's

decision and Rottschaefer's convictions.

Ill.

Rottschaefer was sentenced to 78 months in prison

on September 24, 2004, under the mandatory Guidelines

regime, based on drug amounts found by the District

Court. He argues that his sentence violated United

States v. Apprendi, 530 U.S. 466 (2000), and United

- States v. Booker, 543 U.S. 220 (2005). Having determined

that Booker issues are best resolved by the District Court

in the first instance, we will vacate his sentence and

remand for resentencing in accordance with that opinion.

See United States v. Davis, 407 F.3d 162, 165 (3d Cir.

2005) (en banc).

IV.

For the foregoing reasons, we will affirm

Rottschaefer's convictions. We will vacate his sentence

and remand for resentencing under Booker.

13a

APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT .

Nos. 04-4015 and 05-1229

UNITED STATES OF AMERICA

BERNARD ROTTSCHAEFER,

Appellant

Appeals from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 03-cr-00162)

District Judge: Honorable Gary L. Lancaster

Argued March 3, 2006

Before: RENDELL, BECKER and GREENBERG,

Circuit Judges.

JUDGMENT

14a

These causes came on to be heard on the record

from the United States District Court for the Western

District of Pennsylvania and were argued on March

3,2006. On consideration whereof, it is now here

ORDERED and ADJUDGED that the October

14,2004 judgment of sentence is VACATED and this

matter is REMANDED for resentencing. The District

Court order entered on January 12, 2005 is hereby

AFFIRMED. All of the above in accordance with the

opinion of this Court.

ATTEST:

/s/ Marcia M. Waldron, Clerk

Dated: April 27, 2006

15a

APPENDIX C

UNITED STATES CODE

TITLE 21 - FOOD AND DRUGS

§ 802. Definitions

As used in this subchapter:

x* k* ke K

(21) The term ‘practitioner’ means a physician,

dentist, veterinarian, scientific investigator, pharmacy,

hospital, or other person licensed, registered, or otherwise

permitted by the United States or the jurisdiction in

which he practices or does research, to distribute,

dispense, conduct research with respect to, administer, or

use in teaching or chemical analysis, a controlled

substance in the course of professional practice or

research.

* * *€ * *

§ 822. Person required to register

(a) Period of registration

(1) Every person who manufactures or distributes

any controlled substances or list I chemical, or who

proposes to engage in the manufacture or distribution of

any controlled substance or list I chemical, shall obtain

16a

annually a registration issued by the Attorney General in

accordance with the rules and regulations promulgated

by him.

(2) Every person who dispenses, or who proposes

to dispense, any controlled substance, shall obtain from

the Attorney General a registration issued in accordance

with the rules and regulations promulgated by him. The

Attorney General shall, by regulation, determine the

period of such registrations. In no event, however, shall

such registrations be issued for less than one year nor for

more than three years.

(b) Authorized Activities

Persons registered by the Attorney General under

this subchapter to manufacture, distribute, or dispense

controlled substances or list I chemicals are authorized to

possess, manufacture, distribute, or dispense such

substances or chemicals (including any such activity in

the conduct of research) to the extent authorized by their

registration and in conformity with the other provisions

of this subchapter.

The following persons shall not be required to

substance or list I chemical under this subchapter:

(1) An agent or employee of any registered

manufacturer, distributor, or dispenser of any controlled

17a

substance or list I chemical if such agent or employee is

acting in the usual course of his business or employment.

(2) A common or contract carrier or

warehouseman, or an employee thereof, whose possession

of the controlled substance or list I chemical is in the

usual course of his business or employment.

(3) An ultimate user who possesses such substance

for a purpose specified in section 802(25) of this title.

(d) Waiver

The Attorney General may, by regulation, waive

the requirement for registration of certain

manufacturers, distributors, or dispensers if he finds it

consistent with the public health and safety.

(e) Separate registration

A separate registration shall be required at each

principal place of business or professional practice where

the applicant manufactures, distributes, or dispenses

controlled substances or list I chemicals.

(f) Inspection

The Attorney General is authorized to inspect the

establishment of a registrant or applicant for registration

in accordance with the rules and regulations promulgated

by him.

x* * &€ *&

§ 829. Prescriptions

18a

(a) Schedule II substances

Except when dispensed directly by a practitioner, other

than a pharmacist, to an ultimate user, no controlled

substance in schedule II, which is a prescription drug as

determined under the Federal Food, Drug, and Cosmetic

Act [21 U.S.C.A. § 301 et seq.], may be dispensed without

the written prescription of a practitioner, except that in

emergency situations, as prescribed by the Secretary by

regulation after consultation with the Attorney General,

such drug may be dispensed upon oral prescription in

accordance with section 503(b) of that Act [21 U.S.C.A. §

353(b)]. Prescriptions shall be retained in conformity

with the requirements of section 827 of this title. No

prescription for a controlled substance in schedule IT may

be refilled.

(b) Schedule III and IV substances

Except when dispensed directly by a practitioner, other

than a pharmacist, to an ultimate user, no controlled

substance in schedule III or IV, which is a prescription

drug as determined under the Federal Food, Drug, and

Cosmetic Act [21 U.S.C.A. § 301 et seq.], may be

dispensed without a written or oral prescription in

conformity with section 503(b) of that Act [21 U.S.C.A. §

353(b)]. Such prescriptions may not be filled or refilled

more than six months after the date thereof or be refilled

more than five times after the date of the prescription

unless renewed by the practitioner.

19a

No controlled substance in schedule V which is a drug

may be distributed or dispensed other than for a medical

purpose.

(d) Non-prescription drugs with abuse potential

Whenever it appears to the Attorney General that a drug

not considered to be a prescription drug under the

Federal Food, Drug, and Cosmetic Act [21 U.S.C.A. § 301

et seq.] should be so considered because of its abuse

potential, he shall so advise the Secretary and furnish to

him all available data relevant thereto.

* * *£ ££

§ 841. Prohibited Acts A

(a) Unlawful acts

Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or

dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess

with intent to distribute or dispense, a counterfeit

substance.

20a

APPENDIX D

CODE OF FEDERAL REGULATIONS

TITLE 21 - FOOD AND DRUGS

§ 1306.04 Purpose of issue of prescription

(a) A prescription for a controlled suistance to be

effective must be issued for a legitimate medical purpose

by an individual practitioner acting in the usual course of

his professional practice. The responsibility for the

proper prescribing and dispensing of controlled

substances is upon the prescribing practitioner, but a

corresponding responsibility rests with the pharmacist

who fills the prescription. An order purporting to be a

prescription issued not in the usual course of professional

treatment or in legitimate and authorized research is not

a prescription within the meaning and intent of section

309 of the Act (21 U.S.C. 829) and the person knowingly

filling such a purported prescription, as well as the

person using it, shall be subject to the penalties provided

for violations of the provisions of law relating to

controlled substances. 2

(b) A prescription may not be issued in order for

an individual practitioner to obtain controlled substances

for supplying the individual practitioner for the purpose

of general dispensing to patients.

‘detoxification treatment’ or 'maintenance treatment,'

unless the prescription is for a Schedule III, IV, or V

narcotic drug approved by the Food and Drug

21a

Administration specifically for use in maintenance or

detoxification treatment and the practitioner is in

compliance with requirements in § 1301.28 of this

chapter.

22a

APPENDIX E

Prescription Drug Diversion Prosecutions

Quick Reference Card 2002

We intend this card to serve as a basic guide to

prosecuting prescription drug diversion cases. Users

should check recent cases and, where necessary, consult

with their supervisors before making a final decision

regarding charging strategies. For space purposes, we left

the “U.S.” out of all of our citations. If the cite involves a

civil case, we noted the same.

Why Drug Diversion Prosecutions - Civil and

Criminal?

# The Controlled Substances Act, 21/801 et seq., states

that “except as provided by this subchapter, it shall be

unlawful for any person knowingly or intentionally...

to distribute, or dispense a controlled substance.

21/841(a)(1). Section 842(c)(1) authorizes civil penalties

for a violation of the act. "In order to enable physicians

and certain others (e.g., manufacturers, nurses, and

pharmacists) lawfully to distribute or dispense drugs

within the course of their professional practice, Congress

provided that ‘[persons registered . . . under this

subchapter . . . to the extent authorized by their

registration and in conformity with the other provisions

of this subchapter.” 21/822(b). “This exemption from the

Act granted to medical practitioners engaged in

distribution of controlled substances is a limited one

23a

since practitioners possess increased access to

controlled substances and therefore greater

opportunities for diversion. ALN Corp., 1993 WL

402803, *2 (D. Conn.) (Civil case), quoting Vamos, 797

F.2d 1146, 1152-53 (2d Cir. 1986); see also Moore, 423

U.S. 122, 135 (1975); Clinical Leasing Service, Inc., 759 F.

Supp. 310, 316-17 (E.D. La. 1990) (civil case). & Congress

provides an exemption to physicians and other medical

practitioners who use their ability to issue controlled

substances to heal patients, but allows prosecution of

those unscrupulous medical professionals who use these

privileges to deal and steal. See Singh, 54 F.3d 1182,

1188-89 (4" Cir, 1995) (“Congress gave doctors the power

to authorize the distribution of dangerous addictive

drugs, and with that power, Congress also places upon

[the doctor] the responsibility to distribute them wisely

within the course of [the doctor’s] medical practice”).

Relevant Definitions

= Practitioner means a physician, dentist, veterinarian,

scientific investigator, pharmacy, hospital, or other

person licensed, registered, or otherwise permitted, by

the United States or the jurisdiction in which he practices

or does research, to distribute, dispense, conduct research

with respect to, administer, or use in teaching or

chemical analysis, a controlled substance in the course of

professional practice or research.21/802(21). #

Controlled Substance means a drug or other substance,

or immediate precursor, included in Schedule I, II, III, IV,

or V of 21/812. 21/802(6). ® Deliver means the actual,

constructive, or attempted transfer of a controlled

24a

substance or a listed chemical, whether or not there

exists an agency relationship.21/802(8). ® Dispense

means to deliver a controlled substance to an ultimate

user or research subject, by, or pursuant to the lawful

order of, a practitioner, including the prescribing and

administering of a controlled substance and the

packaging, labeling or compounding necessary to prepare

the substance for such delivery. The term “dispenser”

means a practitioner who so delivers a controlled

substance to an ultimate user or research subject.

21/802(10). 8 Distribute means to deliver (other than by

administering or dispensing) a controlled substance or a

listed chemical. The term “distributor” means a person

who so delivers a controlled substance or a listed

chemical.21/802(11). @ Ultimate User means a person

who has lawfully obtained, and who possess[es], a

controlled substance for his own use or fur the use of a

member of his household or for an animal owned by him

or by a member of his household.21/802(27). See Bartee,

479 F.2d 484 (10 Cir. 1973) (various definitions).

Basic Element of § 841 Offense

® The basic elements are: (1) the defendant knowingly or

intentionally, (2) distributed or dispensed, (3) a controlled

substance. The statutory language of 21/841 does not

contain any other elements. However, to prove: that the

distribution or dispensation via prescription was illegal,

the government must show that there was no legitimate

medical purpose for the prescription and the same was

not issued/filled in the usual course of professional

25a

practice or was beyond the bounds of medical practice.

Singh.

When is a Prescription for a Controlled Substance

Effective?

® A prescription for a controlled substance is effective if

issued (1) for a legitimate medical purpose (2) by an

individual practitioner (3) acting in the usual

course of h is professional practice, 21 C.F.R.

§1306.04(a). & The responsibility for the proper

prescribing and dispensing of controlled substances is

upon the prescribing practitioner, but a corresponding

responsibility rests with the pharmacist who fills the

prescription. See Milicia, 769 F. Supp. 877, 878-80 &

n.8 (E.D. Pa.1991), citing § 1306.04(a). = Any

individual practitioner who issues or fills a prescription

knowing that the prescription was not issued for a

legitimate medical purpose in the usual course of

professional treatment (or for legitimate and authorized

research), shall be subject to penalties provided for

violations of the controlled substances law. A conviction

will be upheld even if the government does not present

compelling evidence that the doctor prescribed with

malicious motive or the desire to make a profit. Singh, at

1188.

What is a Legitimate Medical Purpose?

® A physician is acting with a legitimate medical purpose

when he or she prescribes medical treatments that are in

strict compliance with well-established and

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generally accepted medicalk-guidelines, and

administers medical treatments that appropriately

and correctly address and relieve the present

medical condition. Tran Trong Coung, 18 F.3d 1132 (4"

Cir. 1994) (reversed and remanded). ® To decide whether

a physician acted without a legitimate medical purpose,

you must examine all of the defendant's actions and the

circumstances surrounding them. ® Abbreviated or no

medical history or physical examination is probative on

the question of whether a legitimate medical purpose

exists. Chin, 795 F.2d 496, 500 (5" Cir. 1986). # Evidence

that a doctor tells patients where to get their

prescriptions filled, prescribes drugs even after learning

of a patient’s addiction to them, or asks patients about

the amount or type or type of drugs they want, is

probative of whether a legitimate medical purpose exists

for the dispensed controlled substances. Singh, 54 F.3d

1182; Coung, 18 F.3d 1132.

What is the Usual Course of Professional Practice?

w “There are no specific guidelines concerning what is

required to support a conclusion that an accused acted

outside the usual course of professional practice. Rather,

the courts must engage in a case-by-case analysis of

evidence to determine whether a reasonable inference of

guilt may be drawn from specific facts.” Singh, at 1187,

quoting August, 984 F.2d 705, 713 (6" Cir. 1992), and

Cuong, at 1137-38, 8 A physician must act in a good faith

manner that is in direct accordance with the

reasonableness standard set forth in the medical

curnmunity. Boettjer, 569 F.2d 1078, 1080-82 (9" Cir.

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1978). @ A physician must use reasonableness and sound

medical discretion in following generally accepted medical

guidelines in the administration of correct-medical

treatment throughout the physician/patient relationship.

Moore, 423 U.S. at 139. ® Licensed physicians who

prescribe controlled substances outside bounds of their

professional medical practice are subject to prosecution

and are no different from large scale drug dealers.

Comprehensive Drug Abuse Prevention Act of 1974,

§ 401(a), 21 U.S.C.A. § 841(a). & The indictment need

not charge that the dispensation was done outside the

course of professional practice, Steele, 147 F.3d 1316 (11™

Cir. 1998) (en banc), citing 21/885(a)(1), because the

government does not have to negate any exemption or

exception set forth in Title 21 in the indictment). # The

better practice, however, is to include this language to

familiarize the jury with the concept and make clear your

basis for the illegal dispensation and distribution

charges. Roya, 574 F.2d 386 (7 Cir. 1978).

Deliberate Ignorance/Willful Blindness

® The government may show knowledge by proof that the

physician or pharmacist deliberately closed his or her

eyes to the true nature of a prescription. Lawson, 682

F.2d 480 (4" Cir. 1982) (pharmacist charged with illegal

distribution of controlled substances); Neville, 82 F.3d

750, 759-60 (7 Cir. 1996). @ “When a pharmacist is faced

with a large number of prescriptions all written by one

doctor and all presented by one person, this constitutes

evidence that the prescriptions are not legitimate.”

Lawson, at 482, citing Hayes, 595 F.2d 258, 260 (5" Cir.

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1979); see also Milicia, 769 F. Supp. at 884. = “[U]niform

dosages and quantities belied any conclusion that the

prescriptions . . . were ordered for individual patients.”

682 F.2d at 482-83 & n6 (discussing expert testimony

that uniformity of prescriptions should signal to a

pharmacist that the prescriptions were not legitimate).

®The nature of the physician's practice does not match

the nature of the prescriptions (proving outside the

course of professional practice and lack of legitimate

medical purpose). 682 F.2d at 482-83 (giving the example

of Dilaudid being used only for those people with

excruciating pain, such as with a doctor operating a clinic

that treats terminally ill cancer patients). 8 The Lawson

court held that the evidence proved the defendant

pharmacist “willingly igr sred every signal that he should

question the volume of controlled substances being

dispensed from his pharmacies.” Id. & n.17, citing Seelig,

622 F.2d 207, 213 (6" Cir. 1980) (jury instructions). ®

Others: Prescriptions written on a large-scale basis (i.e.,

over 90% of the prescriptions written by the physician

were for controlled substances, a, figure expert testimony

will show is outrageously high and dramatically out of

line with professional medical practices of other

similarly-situated physicians). Hammond, 781 F.2d 1536

(11™ Cir. 1986). @ Consider a pharmacist expert

witness, and have them testify that “pharmacists are not

allowed to fill every prescription issued by a licensed

physician and they must screen their patients for

‘drug-seeking’ behaviors.” Sims-Robertson, 16 F.3d 1223,

1994 WL 12212 (6" Cir. (Mich.) (Unpublished). # See the

DEA Pharmacist's Manual (on their web-site). See also

Leal, 75 F.3d 219 (6" Cir. 1996) (pill mill case, defendant

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pharmacist, and “ostrich” instruction approved); Veal,

985 (6" Cir. 1994).

Dispense or Distribute or Both?

® The case law is not always clear about whether

the act of prescribing or filling controlled

substances without a legitimate medical purpose

and outside the course of professional practice is

Illegal Dispensing or Distribution or Both. ®Here

are a few cases illustrating different charging theories.

= PRESCRIBING: “Improperly issuing a prescription for

a controlled substance is sufficient to warrant a

conviction under the [CSA] even though the doctor

does not himself actually distribute the drugs and

even though the prescription is not subsequently

filled. The sheer number of prescriptions written to any

individual is proof that the defendant knew he was

prescribing drugs improperly. Cuong, 18 F.3d at 1139,

quoting Stump, 735 F.2d 273, 275-76 (7 Cir. 1984). =

DISPENSING: “A doctor's authority to prescribe

controlled substances is violated when he uses that

authority to assist another in maintaining a drug habit

or when he dispenses controlled substances for other

than a legitimate medical purpose. Singh. ©

DISTRIBUTION: The indictment was not defective

because the government charged the defendant with

illegal distribution instead of illegal dispensation. Ellzey,

527 F.2d 1306 (6 Cir. 1976). # BOTH: In Green, 511

F.2d 1062 (7" Cir. 1975), a physician was charged and

convicted of illegal dispensation and a pharmacist was

charged and convicted of illegal distribution. In Hoffman,

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129 F.3d 1196 (11" Cir. 1997), the plea agreement

charged both illegal dispensing and distribution. In

Sutherland, 2001 WL 1502913 (W.D. Va.), the jury

convicted the defendant of 427 counts of unlawfully

dispensing and distributing controlled substances.

In Dunbar, 614 F.2d 39, 41 (5" Cir. 1980), the court said

“a licensed medical doctor can be prosecuted for the

distribution or dispensation of Schedule II controlled

substances outside the usual! course of professional

practice, citing Moore, 423 U.S.122. 8 The “Go-Figure”

Winners are: “[t}o convict a physician of distributing a

controlled substance . . ., the government must prove

... that the defendant ‘distributed or dispensed a

controlled substance.” Singh, 54 F.3d at 1186-87, quoting

Cuong, 18 F.3d at 1141; see also Chin, 795 F.2d at 499

(diet pill doc). "REAL DISTINCTION?: Read Harrison,

651, F.2d 353 (5" Cir. 1981); Thompson, 624 F.2d 740 (5"

Cir. 1980); and Leigh, 487 F.2d 206 (5 Cir. 1976). =

SOLUTION?: Read Moore, 423 U.S. 122. You cannot

create a hyper-technical distinction between dispense and

distribute as both involve delivery. Feliman, 549 F.2d

181, 182 (10" Cir. 1977); see also Badia, 490 F.2d 296 (1*

Cir. 1973); Rosenburg, 515 F.2d 190 (9™ Cir. 1975).

Unit of Prosecution

® The unit of prosecution is each act of dispensation or

distribution (each prescription written or filled). Sugar,

606 F. Supp. 1134 (S.D.N.Y. 1985); Elliott, 849 F.2d 886

(4™ Cir. 1988).

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Death or Serious Bodily Injury

® If you have evidence of patient overdoses resulting from

the physician’s prescribing pattern, consider charging the

enhances penalty provisions under 21/841(b). There are

Apprendi issues here.

Expert Witness Issues

# “Neither the government nor the defendant is required

to provide expert testimony on the issue of whether the

actions taken by the defendant were or were not for a

legitimate medical purpose or in the usual course of

professional practice.” Polito, 111 F.3d 132, 1997 WL

178879, *5 (6 Cir. (Ohio)), quoting Word, 806 F.2d 658,

663 (6™ Cir. 1993). @ “There are cases in which the lay

testimony is so clear that no expert testimony is required

to determine that the defendant's actions were not for a

legitimate medical purpose nor in the usual course of

professional! practice.” Polito quoting Word. ® Many cases

are not that clear cut because the target physician or-

pharmacist may also have legitimate patients or fill

legitimate prescriptions. ® Potential Areas of Expert

Testimony: Signs of addiction and how a physician

discovers them. The effects of all of the drugs prescribed,

and their proper uses overall, the legal requirements for

issuing a prescription, and the inappropriateness of the

prescriptions in each § 841 count. The danger of

long-term use of #arcotic analgesics, which contain

acetaminophen, and their toxic nature to the human

body. The process of titrating narcotic dosages upward as

the body adjusts and develops tolerance to them, and why

32a

you do not prescribe high dosages to a patient that is not

opioid-tolerant. The distinctions in treating acute,

malignant, and chronic, non-malignant pain patients, and

the distinctions between abuse, addiction, dependance,

and tolerance. Poly-pharmacy or prescribing specific drug

combinations — when to and when not to. This is

important because many pill docs prescribe in cocktail

fashion, i.e., hydrocodone, soma, oxycodone, and Xanax.

Note: pain is subjective and requires a specific treatment

plan for each patient. This is important because the bad

doctors prescribe the same drugs in the same amounts to

all or most of their patients, including patients within the

same family. Use. a pain specialist to review medical files

and provide opinion testimony concerning legitimate

medical use of opioid therapy without other non-invasive

or invasive therapies. Make sure your expert has

reviewed pharmaceutical literature re: drugs at issue and

prescribes these drugs in his/her practice. Determine

whether your expert has served on the drug

manufacturer’s speakers’ bureau.

Sample Count Table

8 Consider using the following table to set out each

substantive dispensation or distribution count in your

indictment:

Count | Date Controlled Num | Stre

Substance, Scheduie | ber ngth

& Form of

Pills

33a

1 7/8/01 | Amphetamine (S-II) | 90 30mg

Adderall®

2 7/10/01 | Oxycodone (S-ID) 90 40mg

OxyContin®

3 7/11/01 | Hydrocodone (S-III) | 180 10mg

Norco®

Sentencing Issues for Pill Cases

® Equivalency ratios are used in determining drug

weight for sentencing purposes in pill cases. Thus,

“to determine the base offense level, the probation officer

[will use] the drug equivalency tables to convert

oxycodone, [amphetamine, and hydrocodone] into an

equivalent marihuana weight.” Sutherland, 2001 WL

1502913, *3, discussing sentencing on Schedule IIT

oxycodone and amphetamine. See OxyContin

Sentencing Table. ® The “guidelines do not

differentiate between oxycodone and its salts,” so the

whole weight of the pill counts. Sutherland, citing the

guidelines and Soto, 1 F.3d 920, 922-23 (9" Cir. 1993). ™

A defendant’s special training as a doctor

constitutes a special skill used in the commission of

(drug diversion] offenses. Same with a pharmacist.

Sutherland.

Further Guidance

® For further guidance on these issues contact the

authors:

34a

Jennifer Golen, AUSA-EDTN, jennifer .bolen@usdoj.gov

Randy Ramseyer, AUSA-WDVA,

randy.rams |.ZOvV

AUTHORS: BOLEN & RAMSEYER -

PRESCRIPTION DRUG DIVERSION PROSECUTIONS -

QUICK REFERENCE CARD

OCTOBER 2002

35a

APPENDIX F*®

EXCERPTS OF RECORD IN SUPPORT OF MOTION

FOR NEW TRIAL

August 13, 2001

Yesterday 4 of my letters to you got sent back cause my

mom put this address on it. I could have got thrown in

the hole for that shit. So I got them here & I'll give them

to you when I get out or when you do cause it looks like

the D.A., wants me to do a year up state. But my P.D. is

gonna try to get me in RIPADS and bootcamp [sic]

instead.

January 31, 2002

I’m doing OK right now, other than worrying constantly

of whether I’m going to jail or not.

*eR AK

°This compilation of excerpts of Jennifer Riggle's letters to

Barron Shelton was filed as an attachment to Dr. Rottschaefer's

Motion for New Trial, nd appears in the Supplemental

Appendix filed in the Third Circuit at App. 1000-1029. It is

repeated here exactly as it appears in the Supplemental

Appendix.

The letters in their entirety were also filed as an

attachment (titled Master Exhibit) to Dr. Rottschaefer's Motion

for New Trial, and appear in the Supplemental Appendix at

App. 1035-1655.

36a

I never fall for lines that guys might say like "I think

you're real special" but I believe you and I always though

[sic] for you, but you had some serious problems with

drugs, and you knew I did too and I could be very

vulnerable at times, but I tried to keep my morals but

drugs will take over anything. Now I am a better person,

and the thing you saw in the paper, well I'd rather

explain in person too. So write me back & tell me when

you're getting out and where this place is you're at.

February 12, 2002

I had to quit hanging around you and talking to you all

together cause I was already on probation and pending

charges (D.U.I.) And my mom threatened to throw me out

in the middle of winter. She didn't really know that

much about you, no she did know cause that ass Tony

called & told her a bunch of shit. Anyways, about 2

yrs.[sic] ago I got my 2nd D.U.I & something else so I did

some time in Armstrong C. Jail. * * * After I got out of

jail I went to Arc Manor and after that I moved from

Lower Burrell to Kittanning. I followed up with out-

patient but I still went to the bars & etc. Tell you more

details later.

* eK KK

I'll tell you the disasterous [sic] part in my next letter but

now things are a lot better as far as me being a good mom

cause I’m not using drugs anymore. [I ge to the Discovery

House everyday for methadone. I’m just really scared

about going to jail soon. Only because they have been

37a -

lenient with me too many times in Westmoreland Co. I

don’t even know who my P.O. is over there, but I’ve

already violated my probation I don’t even know how

many times.

March 14, 2002

I just got out of Forbes Hospital tonight. I think I’m done

with the hospital shit for awhile. I accidently took an

overdose last Friday. I'll explain to you when you get out.

* * * That’s what my mom wants and she wants me to

start weening [sic] off the methadone. I want to too. I’m

so sick of having to rely on a drug everyday just so I’m not

sick. I’m on 170 mg. That’s a really high dose.

March 29, 2002

There’s some things I need to talk to someone other than

Michelle about that I really need to vent about. You

know what I mean? I’m even half afraid to write these

things down on paper, cause I’m afraid someone might

see. Call me paranoid or something. [Address on

envelope is 30 Timber Lane, Trafford, PA 15085. Ina

letter dated April 7, 2002, Ms. Riggle identified this

address as Michelle's house.]

April 25, 2002

By the way I am officially back at my mom’s but on one

condition, I have to go to a rehab for at least 30 days and

Kim, my counciler [sic] finally found a place in

Philadelphia that takes people on high doses of meth.

38a

**E* *

My brother & the rest of the family want me to go to a

half-way house for like 10 months. My cousin (the one

that picked us up that time& took us to sheets) just called

to see what I was going to do and every time someone

from my family calls I start crying and I just wish they

would leave me alone about getting off the methadone

cause Im not ready and no one understand that it is

saving my life right now. Right now there is some real

potent dope out there and if I weren’t on meth I'd

probably be dead. A lot of people I know have been dying

because they shoot their usual amount & they die. Just

writing about it is making me want it but thank God that

I know I wouldn't even feel it.

May 3, 2002

I’m finally in Philladelphia [sic] at that rehab I told you

about.

e+e ee *

P.S. New Address L2

111 North 49" St.

Philidelphia [sic], PA 19139

July 26, 2002

Hi Sweetie, guess where I'm at? The chamber. I am sorry

that I haven't written, I've been fucked up. I am so done

with the shit now, I am serious babe. My prelim is 7-29

39a

they'll probably put me to death. I have 12 counts of

felony. I’m really screwed. I just talked to your mom the

other night & she said you’re supposed to get out within a

month or 2 and I was just thinking about seeing you soon

and now look at it. I just asked a counciler [sic] if you

could come see me & as soon as I mentioned your name

he was like nope he’s been here. So then I tried to say we

were married but shit he aint [sic] stupid.

July 28, 2002

Tomorrow's my hearing, I'm so nervous. I think that

bitch that was in on us selling pills is talkin [sic] shit on

me cause she ain't doing no time.

July 29, 2002

Well babe things went real shity [sic] this morning. They

want to give me 2-4 for each charge, that could be 10-20

yrs.{sic) My PD said I'll probably have to sit here for a

couple months & he's gonna try to get me back in rehab.

You have to come see me. Maybe you could use someone

else's ID. Please try hard. You should have seen that

undercover cop today, he wouldn't even look at me, so I

stuck my middle finger up my nose at him. That's

probably why I am still here. I know he saw it. What a

dick! He shaved his head bawld [sic], he probably thinks

nobody would recognize him.

40a

August 1, 2002

Listen for that time I didn’t write you, you know I was

really messed up on shit. You know how it is, you can’t

talk or write to anyone important. But now I promise I’m

here & I hope you are too. I finally saw the Dr. today, he

gave me resperidol & something else. You would not

believe what I told him to get that, I wanted Kinapin but

you have to have seizures. I am really ashamed of what I

told him, your [sic] gonna think I’m crazy when I tell you.

(note that the address on the envelope is 2119-02, 3000

South Grande Blvd., Greensburg, PA 15601.)

August 3, 2002

I finally wrote to my mom & Casey. I won’t be able to see

Casey for 10 wks. I have to take parenting classes. I aint

[sic] trying to see my daughter through some glass

window, ya know? Anyways, I told my mom not to let

Casey go to Paul’s (my dad) cause I told her (now this aint

[sic] true) that Judge Franzi knows about my dad’s stash

& if she’s out there when they investige [sic], she'll go to

foster care. I hope she listens.

e£eEK SE

You know if I have to do some time I'd rather be up state.

I’m sure there’s more to do up there.

So you wanta [sic] know what I told the Dr.? Please don’t

think I’m crazy. I told him I was hearing voices. And he

said “what are they telling you”? And I said with a

complete straight face “He’s saying he wants to butcher

4la

my insides out & roast them up for dinner.” As I’m

writing this I’m laughing. You probably think I’m

phsycotic [sic]. Don’t worry I’m not. That poor old man,

he didn’t know what to do with me. So of course I prayed

to God to forgive me on that one.

August 19, 2002

Last time we had sex we were too fucked up to know any

better and frankly I never want to remember it that way.

SHEERS

So I go on Wed [sic]. for my bond reduction hearing. Even

if they go down to $50.000 that’s still $5,000 that no one

has. I'm just hoping for the best. Anything can happen.

I would just like to go home for a little bit to see Casey &

maybe talk to you. Sorry but this is the only paper I had

besides my charges. Besides it’s a cool picture.

August 21, 2002

I went to my bond-reduction hearing today & it went

horrible like I knew it «.ould, but when I got back there

was a letter from you & it turned my whole day

completely around.

August 23, 2002

But I am trying to find every which way to get bailed out

just for a minute, but no one will do it. Oh by the way I

have 5 charges cause I sold 5 times and I’m gonna have 8

42a

violations, so that’s why I want out just for a minute

cause I will be here for awhile. * * * So I’m requesting

another bonds reduction hear {sic] & my mom better say

that I can live there cause it’s % [sic] my house & last

time she said I couldn't.

August 24, 2002

My memory’s so bad. That’s cause I was always high

before. But from now on I'll remember everything. * * *

Casey could probably pass as your daughter with your

dark features and all & you'll probably be out before me

so we could say she’s your’s [sic] so you could write &

come visit legally. There’s no father listed on her birth

certificate cause her dad’s an ass so they would definately

[sic] believe it. We'll just say that you’ve come back into

our lives again. So what do you think babe?

August 27, 2002

So I never did tell you how I got here. Well I got off the

streets in East Liberty & went to someone’s house in

Baldwin, called dad & tried to go there (I was stupidly

drunk) but he wouldn’t have it, he somehow got the

number & called the next day to get the address (to send

me money) then that night, bang, bang, bang, my stupid

ass answered the door & there they were. That’s why I

am so mad at him, but in a way I don’t blame hin cause I

almost got killed out there.

43a

August 31, 2002

I got your letter today. I’m so frustrated but at the same

time you got me excided [sic]. Next Dec. isn’t that far

away it just seems like it. And I’m hoping I’m out by then

too. 8 violations is no joke. They might not run it

concurrent.

September 1, 2002

I probably already asked you about these things before

but you know as well as I that I was too fucked up at the

time. I'm sorry about lying about being clean. But you

know for sure now that I am now.

I tl

September 2, 2002

Listen I have a question about my case. I think they

want to subpeaned [sic] me to a grand jury about the

doctor I was seeing. They’re saying he was bribing

patients with sex for pills, but it never happened to me.

DEA saidthey will cut my time for a good testimony. I

don’t want to be a snitch but what should Ido? Everyone

else is testifying against. him. Please don’t let nobody see

this. The asking cause I trust your judgement the most.

No one else knows about it & I’m scared.

September 3, 2002

My P.D. is Scott Butar. A lot [sic] of people say he's good

but I'm still sitting. I guess they can only do so much at

once, especially when they're not paid. Sometimes I'd be

44a

wanting to tell him I'll pay him. If someones [sic] gonna

be paid it better be a real att. [sic]

September 3, 2002 [second letter with this date]

Also, I was supposed to be on probation for I think 2 yrs.

But now they're violating me on 2 or 3 charges for not

doing TASC. And I have 5 new charges that they will

violate me for if I'm convicted. If nothing happens with

these violations (yeah right) then I'll be off prob. [sic] next

yr. [sic] sometime I think. I am also worried about

Alleghany Co. for the time you saw me in the paper (the

1st time). If that goes through, I'll get my liscence [sic]

back Nov. 2003 if nothing then this yr. [sic]. which I

doubt & only if I pay off probation in Armstrong.

September 5, 2002

Does your mom know what I did to get here? I'm worried

that she won't like me cause of what I've done. Anybody

would be judgmental of that. Like you said to me. I will

prove myself to her and show her I will be a good woman

to you. You asked "what does my mom think of me being

here?" Well she's not exactly happy but she's definately

[sic] more at ease knowing I'm safe. And as far as my

case, she can't say anything cause she was there when I

did it. She doesn't condone what I did, but she knew I

had to pay my share of the rent somehow. That's the sad

part of it. Most of the money went to bills, not drugs.

Either way it's not worth it.

4Sa

September 9, 2002

My att.[sic] is trying to get me Ripads & yeah I want to

do that.

xe EX *

Don't worry babe, I will get checked by the Doctor. I

didn't use no needle since the last time I was checked.

September 15, 2002

So anyways, I go to court in Oct.[sic] sometime for my

formal arraignment. I really hope they offer me RIPADS

and you win your appeal so we can finally be together

again. Everyone’s telling me not to do RIPADS, it’s too

hard & I'll flunk out. But what they don’t understand is

that I have a little girl that’s depending on me to be her

mother. I want to stay clean now more than ever.

September 20, 2002

Even if I get RIPADS, I stili have these other violations

that might hold me here. I’m starting to get real nervous

about my hearing. I do have yet to find out when my

hearing is. I’m gonna ask the councel [sic] if I have any

detainers. Just pray for me please. I’m sure you’re

nervous as hell about your appeal. _—— I'll pray for

you too. OK? |

*eERES

46a

Then I started thinking when am I going to be able to be

a real mom to Casey? When she's 7 or even 3, that's too

far away. I'll admit it I'm so scare [sic] & I want so bad

for things to happen now. For us, for Casey. I don't

mean to complain like this, but I think the drugs are

finally all out of me & now I'm a fucking emotion train

wreck. Did reality stomp you in the ass like this too? I

mean what if they deny me RIPADS? Then what, I think

I'll probably go insane.

Ke KK *

I got 2 courtdates [sic] for my revocation because I didn’t

do my CRN eval. One’s for Oct. 17" & the 23". They're

in front of Blakovic & McCormick. I’m worried about

McCormick he can be a real jerk. I wonder if he goes to

church.

September 22, 2002 5

I did good on the coffee yesterday. I only had 2 cups I

didn’t need any. I have like 3 bags left. People owed me

them for giving them my pills, but I got to be careful

cause somebody got caught with one in her mouth & she

went to the hole.

September 25, 2002

Honey, earlier in my letter I said “I will only take

prescription drugs” well I want to change that. I will only

take non-narcotic drugs. I think you may know that

before * went to Philly { was addicted to Xanax real bad

47a

so let’s put it this way, I would rather be dope sick. Not

literally, but my habit was very bad. Let me just tell you

babe. God is working real good in our lives. I went to

court unexpected today in Springdale. You know about

me driving under suspension & all that good stuff. Well,

the judge said “Did you do your 90 days?” I said “No” he

said “well it says here you did,” I said “OK we'll leave it at

that then right?” So then he said “you did 60 days at

UCP? I said “yeah & I went to rehab twice” he said “I

want you to do 30 days for the $947.50 you owe. You can

do it in WCP unless you're released then you have to go to

Allegheny. So I am so relieved that that’s taken cave of. I

really thought I'd have to go to Allegheny, but no, agairi

God works in mysterious ways, huh? I just hope and pray

that everything in this county goes as smoothly as that

one. I guess some other lucky person did my time for me

maybe, but then again I guess that all would equal 90

days.

KeKK

So have you heard the latest? Well besides I love you ’'m

labeled as a snitch now. People think I went to the US.

Marshals today. I forgot to tell you about 3 wks.|[sic] ago

they picked me up & then we got % [sic] way out the

driveway & they said to take me back. Remember I told

you about the Doctor well I still want your advice but

sweetheart you know | tell you everything and the last

thing I am in this world is a snitch.

48a

September 26, 2002

I received 5 certified letters today and my formal ;

arraignment is tomorrow! I can’t believe it, things are

coming into order fast. But I am nervous as hell. They’re

also going to consolodate [sic] all my cases into one. Sorry

sweety I have no more paper left.

September 27, 2002

OK, so now seriously, I don’t think I told you why I got

kicked out of rehab in Philly. Did Michelle tell you? Well

I'll tell you. I kept breaking little rules as usual, they

kept writing me up so finally my insurance wouldn’t pay

for no more. My mom wouldn’t let me come home, so she

bought me a bus ticket to Pitts. I went & stayed at a

shelter downtown. I met a girl who smoked a lot of crack

so you know what happened there. Auk. After I was

there we both got kicked out for not coming in by 10:00.

So I was in New Ken for a wk. [sic], getting high of

course, not that I’m proud of that. Then I decided to go

back to St. Francis to detox off of Meth. I got kicked out

of the clinic too. So after the hospital, I went to Pyramid

in Wilkinsburg, terrible place for rehab. Stayed for 10

days, left & you know what I did & ended up here.

September 28, 2002

_ You probably noticed when I was writing you before I

came in here, my thoughts weren’t clear & too fucked up

but now each day my thoughts get clearer & clearer. I

know that’s from being clean.

49a

September 29, 2002

I can’t believe it’s the end of the month already. When I

was talking to Chris last night I was telling him what my

P.O. is aiming for as far as my plea and after I got done

telling him I waited for him to respond & I had to say

“Are you there?” Cause I told him I might have to do a yr

[sic] and he didn’t know what to say. I don’t think he

realized I could be in here that long.

—

September 30, 2002

Oh the guy that set me up is Jeff McGuff, he’s upstair

[sic] on C. But when I went to court with this guy I sent

a message with him, but nothing stupid to get myself in

trouble. I thought about doing something crazy to him,

but hell get his another way. He set up enough people to

fill an army so somebody’s bound to do something dirty to

that dirty ass motherfucker. But it was my own stupidity

what I did. I’ve seen so many people get set up, I

should’ve known better, but I needed money so bad that I

just took a risk & I’d worry about it later. But Linda & I

knew there was something fishy. That stupid bitch let

herself be survalanced [sic] at McDonald’s & she was

even set up before so she knew how those assholes

worked.

Honey, I want you to know that when I was home before I

would’ve sent you money but I wasn’t working or selling

no more & I was barely able to pay my mom rent let alone

50a

buy Casey things. That’s one thing, I don’t ever want to

have to live off the government anymore so when I do get

out, { am getting a job, for sure.

October 2, 2002

Honey I’m pretty sure you told me your age but I’m sorry

that I don’t remember. I was taking one too many drugs

at that time, but as of July 25, 2002 I will remember

everything you tell me.

October 6, 2002

I have yet to find out about my case. Everyone’s says it

takes a while. I would just really like to be home for

xmas [sic]. To see Casey’s eyes light up when Santa

comes. I wish we both could be home for her. Who

knows, maybe it will happen like that we just have to

stay strong & keep the faith. (Note there are two letters

dated October 6, 2002)

October 8, 2002

I'm sorry, but this is all the paper I have to write on till

Fri.[sic] You wouldn’t believe the girls coming in here left

& right from New Ken. They’re the same ones that

bought from the same dealer as me that wk. [sic] I was in

New Ken. I wondered when it would be their turn. This

girl, Janelle Houser, came back the other night after

being out for only 2 wks. Prior to that she was here for

13 mos! I think this is home to some people. Well not to

me.

Sla

October 9, 2002

Well sweety, there’s something I’ve been wanting to tell

you. I’m scared, but I know I can tell you anything. OK

here goes. When I went to East Lib. I was hurting for

money real bad so I could just say “Fuck the Bullshit” &

go home to my mom & cee cee [sic]. I didn’t care what

she had to say about it. So f met this dud, sweety I’m

sorry if this hurts you but I feel it in my heart that you

should know. Anyways he offered me $50.00 to fuck him

& the sad thing is I did. Well I don’t know to this day

whether it was his or my fault. But the motherfucker

wouldn’t get off of me, for like ¥% [sic] hr.[sic} I was

screaming for him to get off me. So then finally I just

built up the courage & kicked him completely off the bed.

I couldn’t believe my own strength, so after that he let me

go but I was so ashamed I smoked all my money up &

obviously I didn’t make it home.

*e eet

I am very ashamed that I put my body up for sale like

that, but I didn’t really think I had any other options.

But when I was picked up, deep down I was relieved to

get away from the game.

October 14, 2002

So just 2 days & a wake up I go to court. I am so scared.

I believe that they'll give me time served for my violation.

Then I do in front of McCormick on the 23%. My mom

should be at both. I asked her to bring Casey. I just

52a

want her to see my face & know that I'm alright. Ya [sic]

know? But it will be hard cause I won’t even get to give

her a hug. I might just do it anyway, fuck it. They can

hold me in contempt cause if I don’t, she'll think mommy

don’t love her.

October 17, 2002

I had court today for my violation & he sentenced me to

30 days to 23 mos. Cause I should be there anyway.

Fuck! Don’t say that too loud! I go back on the 23™ for

another one. I hope it goes as well. So two more step

(sic) & I can marry my boyfriend. HA HA! Still didn’t

find out what the hell is up with my arraignment. That’s

the scariest one.

October 19, 2002

Truthfully, I think you might be home first, unless I get

RIPADS. How long did it take them to pick Heather up

from jail after she was sentenced? Sometimes it takes a

while.

October 21, 2002

I just saw my P.O. & he said he talked to the D.E.A today

& they definately [sic] want me to testify. I told them the

story before, but I didn’t think they believed me. But

they will probably come see me again before the trial. I

am sheking right now. So he said he is gonna try to get

me to testify in the next month or so, so I can be home for

Christmas. He said they will probably give me time

53a

served since I been here 3 mos. I asked him about

RIPADS & he said “Fuck RIPADS.” At my arraignment

the state or D.A., whatever wanted to give me 3 yrs. [sic]

up state. Because one time when Yesko bought from me,

it was in my home, & Casey was still to little to sit

straight up yet & he was in a hurry, so for one second I

let him hold her so I could count the money. I know that

sounds really bad & I feel guilty as hell about it. I think

he set me up to that too. Cause in April of this yr. C.Y.S.

was called & she came to inspect, but everything’s alright

now cause they haven’t called or shown up since. I swear

on all my love, I will be a better mother to her. Sweety,

your good feeling was right, God is sooo good. I just hope

I don’t get too nervous on the stand. He asked me if they

could wire me to go into the Dr’s office to try to get some

more pills & see what he’d ask for. I said “hell yeah.” I

think that would be the easiest way instead of trying to

talk in front of all these people. I wish they could’ve gave

me RIPADS cause I am so scared I will blow it. I do

remember everything IJ told them before. I told them

before that my mind was real foggy back then cause I was

on a high dose of meth & Xanax. But if this works &

Lord let it be, then I can come there to marry you, honey.

Then you should be home shortly afterwards. I can’t even

explain how excited I am. Let’s just keep praying that it

works.* * * I had just prayed & asked God to give me the

confidence to be able to lie about the Dr. just this once. I

am not a good liar & I’m scared. The only reason I’m

doing it is cause he’s pretty much already had & he

doesn’t deserve to be practicing. He has ruined many

lives & some people even O.D.’d [sic] on the Oxy’s. Do

you think it could come back to haunt me & that was a

54a

stupid question to ask God? Is there any exception at all

to telling a lie?

October 22, 2002

I go to court tomorrow for the other violation & I just

found out that I have to go on the 28" too for when I

jumped out Linda’s car. I had a pipe in my purse. I go in

front of Bernice McCutcheon, she's really cool. Hopefully

she'll give me time served. I was so stupid though. I took

my purse with me when I jumped out, I didn’t want to

leave that shit behind.

October 23, 2002

I have a lot to tell you. Went to court, he slapped a

detainer on me for that violation. He wouldn’t give me

30-23 mos. Because it was an old burglary charge from

when I was 19. So there’s a detainer intil [sic] they see

what happens with my new case, but I'll get credit for all

my time.

October 29, 2002

No, Michelle don't bother with me anymore, I gave up

trying to call her sorry ass. Last time I talked to her she

said she was quitting the meth too, so I know what she'll

go back to cause she isn't in jail or rehab & it's prebably

the hardest thing I've ever had to kick & I'm sorry to say

it, but she is weaker than I am. She couldn't even stay off

the shit while she was on the meth.

55a

I do realize if I fuck up one more time, I am finished for

about 2 or 3 yrs.[sic] At the least. No this wouldn’t be |

my first felony. I have an old burglary from when I was

20. That’s the reason why I couldn’t work as a CNA

again. I’m just hoping I can get my new shit totally

wiped out. I didn’t go to court yesterday. I failed to

realize that the magistrate’s office thought I was home, so

I had them call for me & tell them, so I don’t get another

warrant.

October 30, 2002

I got more court papers today. I have a trial readiness

conf. [sic] on Nov. 14". I think if the DEA was smart they

would want me to go to the Dr. office to catch him instead

of having me testify because obviously, after hearing all

other women testify & he’s still practicing they still can’t

nab him. You know what I’m saying? So I think that’d

[sic] be their best move.

November 1, 2002

Can you tell I had some coffee today? I couldn’t buy any,

but some woman gave me some shit for you know what

~ P’s. I’m careful though.

ee KX

But I’m telling you I have not talked to no one since you

wrote me in here. OK? Before I got a letter from you, I

56a

really thought that you had it with me for being out there

& I knew you knew what I was doing. You're not stupid

you know how the game goes. But thank God, I was

wrong about you.

November 2, 2002

Baby, you know if I was with you, I would have never

even wanted to sell those pills. Plus, it’s kinda sad to say,

but I would’ve never got on the meth because you had

connections, while my dealer went to jail & so if I still

had gone to that Dr., I would’ve done all those pills up

myself or with you. But reguardless [sic] of that, I

wouldn’t have sold anything, especially behind your back

because I know you wouldn’t have allowed it. So just

know this, I have learned one hell of a lesson, possibly the

hardest way and when we’re together, you never have to

worry about me doing anything that stupid again.

November 4, 2002

Today I called got called to go to the magistrates. You

know for the paraphenalia [sic]. They said I had 3 stems

& asm.{sic] amount on me. I couldn’t remember what it

was. So I waived it & they’re putting it together with my

new case. So if I testify, which I am, then everything will

be wiped out. On the 14" of this month I will find out

what’s really going on * * * So you know what? I’m not

bragging, but I’ve been clean for 100 days, today. And yes

it feels good to be clean. I can go to bed knowing that I

didn’t hurt anyone or myself today & I can wake up with

a clear mind without being hung over or dope sick.

57a

—

November 5, 2002

Sweety, I don’t know how, but I don’t have any tracks

either. Thank God. When you first got clean, did you

ever look at a vein & say something like “Hmm, that

looks prickable”? My urges are going away slowly, but

surely. I always keep in mind how sick I was just 2

mos.[sic] ago. I'll never touch that shit again, any of it,

for that matter. I remember talking to you from

Michelle’s, but because of the meth, will you tell me what

we talked about. I’m sorry, babe, but see we had coke

that night & I remember saying I wanted to wait till after

I talked to you_to do it. Maybe if I had done it first, I'd

remember. Did I tell you I loved you yet? I did love you.

November 9, 2002

So I have 4 more days & I should know then what’s going

on. People are telling me if I did 3 yrs.[sic] upstate then I

only have to do ‘4 of that, which is only a year. But I

want to be home now, I don’t care what I gotta do, I will

make it happen because my husband & our daugher [sic]

need me. Plus I need to see a relyable [sic] dentist. Last

night, I bit on a jolly rancher & a big piece of my back

molar fell out. It’s the size of a rice crispy! The filling’s

been gone & this just added more pain. The tooth is razor

sharp now.

November 12, 2002

Hey sweety, I slept all day yesterday & night cause my

dumbass [sic] almost got caught withholding my meds, so

58a

now I have to take them. I hate it cause all I wanna do is

sleep & I walk around like a lost soul. I only need them

for bedtime. I might quit taking them.

**¥* KF

People are saying that because the election is over, they

are gonna start letting people go. I’m getting real

nervous about Thursday. At least this time I won’t be in

yellow. Honey, if I do have to stay, you can come visit

when you're out. I know you're [sic] say “no, I am coming

to marry you, bitch.” That too. Don’t worry I didn’t tell

my mom about the Doctor. I just. told her there’s a chance

I might come home around Christmas.

xe KK *

Honey all I want for Christmas is to be able to be with

you & Casey. You may not be home, but I want to at

least be able to come visit you. And bring your daughter

up to see her daddy.

November 14, 2002

Court went well today. My P.O. came down to tell me

what was going on, but I didn’t go in front of the judge.

I'll do that on Dec. 2™ for status trial. The D.E.A. will

come see me any day now to see if I’m a good candidate

to go to the Dr.’s office & to testify. That makes me

nervous cause I am a bad liar. Honey, I hope you believe

that I didn’t do anything with that Doctor cause I didn’t.

I would tell you, I tell you everything else. So if I meet

59a

their criteria, then they might give me 12 to 18 mos.,

which is 6 mos. Or they could give me probation, either

way I should be home by the end of Jan. I’m sort of

wishing they would’ve gave me RIPADS cause I think

that’s what I need. And plus, I wouldn’t have all this

stress about the Dr.

* * KK *

He & my mom asked me what happened today & I told

them & everyone here that I got RIPADS. I really wish I

would’ve got that. I asked my P.O. which would get me

home faster & he said the doctor business would.

November 15, 2002

I used to belong to the credit union in LB cause my mom

belongs. But I cleared both my savings & checking out

when I was getting high. And my credit is worthless.

November 22, 2002

Hi sweety, those dudes from you know what came to see

me today. They might put me in front of the J the first

wk. of Dec. So far, they’re only offering me 12 to 18.

Listen, those other letters I wrote shit in about the

doctor, will you please burn them or scribble those parts

out that I talked about it? I am worried something might

happen & you never know what could happen. You know

what I mean?

Ke KK

60a

I used to think some of my problems were traumatizing

until I heard things from you. Honey, I decided that

when I go to the federal courthouse to testify, I am tellirg

them that I won’t testify unless they drop my time down

a lot cause I might as well take 3-6 up state & I'll only

have to do a yr. & % [sic]. What do you think. Those

guys told me that my testimony could put that doctor in

jail for a long time. I told them a good story. Make sure

you scribble this part of the letter out. OK"

November 23, 2002

What do you mean you got the Motrin off your dresser?

Just say it, no one reads our shit. If they did, our letters

would’ve been stopped long ago. |

November 28, 2002

But who knows, you might be coming to see me if things

don’t go well for me. Do you think they will come down

on their offer if I tell them I won’t testify? When I go to

court Mon. {sic} I will tell them I'll even do RIPADS if

they let me go home like within a month.

December 2, 2002

Well, I didn’t go to court today. I had the feeling I

wouldn’t. Today is when my att.[sic] said I'd go, so I don’t

know what the dilleo [sic] is with that.

x KX * *

6la

I talked to my step mom tonight. I finally asked them to

send me money. She said they will on Fri.[sic] My dad is

calling my att.[sic) tomorrow to tell him I agree to testify

if they lower my time. I had to tell her cause he would’ve

found out by my att. [sic] anyhow. I didn’t tell her

everything, nothing about the sex part. See, the doctor is

still in the wrong for not wanting to see Xrays [sic] of my

back before prescribing those pills. All he did was have

me bend over to feel my spine & just by that he decided I

was in a lot of pain. So there is a lot that they’re after.

Honey, I miss you so much, I really hope I can go home

soon so 1 can come marry you. But then again, you just

might be home before me. If I do get 12 to 18 or 11%,

whatever, right after I’m sentenced. I will file a petition

for pre. So there’s a chance we could be home around the

same time, you feel me?

December 5, 2002

What did Michelle tell you? Probably about my overdose

huh? I didn't mean to do it. I got high on Somas &

blacked out & took a bunch of other meds. Honestly

honey, it was an accident.

* KKK

I guess my dad talked to my P.D. today & the dude just

acted like he didn’t know much about my case. He said

they’re offering me 12 to 18 & my state charges will be

dropped. Can that be right, sweety? I mean how could I

do time & have my charges dropped? I am gonna send for

my discovery packet since nobody can fucking tell me

62a

what’s going on. I forgot to tell you my new P.D. is Dante

Bertani. I guess he’s the head of the P.D.’s. Have you

heard of him? I really wish my dad would pull some

money out his ass & get me a real att.{sic] He finds a

way to get everything else.

December 12, 2002

Listen, when I went to court the judge said if the federal

court don’t come through by my Jan. court date, he will

dispose of it. I am worried that it meant that they won’t

use the Feds for my case & they will give me the actual

mandatory. So tell me what you think. I wrote John

Ceraso & asked him to come talk to me. I’m just hoping

that my dad will help me out & pay him. I will ask him if

he'll renegotiate my plea. Plus, I need an att.[sic] who

will tell me what’s going on instead of leaving me in the

dark. Public pretenders don’t do their job. Honey, did

you have a real att.[sic]? Truthfully babe, I am starting

to become discouraged over this whole thing.

December 13, 2002

I am so scared right now that I'll have to do 3-6.

December 16, 2002

Oh you'll never believe what happened Sat. John Ceraso

came to see me & I started telling him about the Dr. He

asked who the Dr.[sic] was. I told him & he says “I can’t

talk to you, I represent him.” But I was kind of relieved

because I] didn’t have to explain about how my dad

63a

couldn’t pay for him. He advised me to get myself a real

att.[sic] but that’s a lost cause. Hopefully if the judge

would dispose of the fed.[sic] court thing, maybe theyll

offer me RIPADS.

December 18, 2002

This week Pam and I are totally ass out on money, but I

will try my hardest to find an envelope. I will never

make it upstate like this. Oh honey thank you for your

advise [sic] I needed it. With all honesty, I am scared to

death to go up there. But I will definately [sic] keep it to

myself. Hopefully something better will happen.

December 24, 2002

The feeling of not being able to see your child's face on

Christmas morning is unbearable. It hurts a lot.

Hopefully real soon we will be home with our family. And

I am never, I repeat, never eoming back to this place

again.

December 28, 2002

But anyways, after dinner they did a whole unit

shakedown and I forgot that I had a Trazadone pill under

my mattress (of all places!). Luckily, Cindy checked our

room and I was honest with her so she let me slide this

time. Honesty is definately [sic] the best policy,

otherwise she would have put me there for lying.

64a

January 3, 2003

I got some good new \ lay. You know how I have

McCormick? Well I go to court on the 21" in front of

Pezze instead. I don’t know how that happened, but it

did. She is so much more family oriented than him. He

has no sympathy for those of us that has children & she

does. So now I have a better change than what I would

with him.

January 10, 2003'

Yesterday my public defender came from the Federal

Court. They are ready for me now. I got my plea in the

mail too. I go to Fed. [sic] court on Jan. 17". My plea

said my sentence will be 12-18 mos. But it says I only

have to do half of my standard range, plus I get time

served. And I was told that they will drop the state

charges & IJ will go to Federal-prison. So that is good

news but I’m not getting my hopes up because I am

scared about you know what. I may have to take a

polygraph. And please make sure you scratch that last

sentence out. Honey I hope you can see that I am

trusting you with my life right now & I always will. Oh

listen to this. About 2 wks ago I had a dream that my

court date was Jan. 17th & sure enough it is. Isn't that

weird?

' The letters dated January 7, 2002 through January 12,

2002 were contained in an enveloped postmarked January 15,

2003. The letter writer appears to be mistaken as to the year.

65a

* Kee *

My att.[sic] told me today that there is a reasonable

chance that the judge gives me time served. That’s if

everything goes well if you know what I mean. But like I

said I am not getting my mind set on going home.

January 12, 2003

My mom came today & she gave me some hope. I have

already cooperated with them & the only way I will have

to testify is if he didn’t sign a plea yet. I said “mom I just

don’t want to contradict myself” & she says “well when

they ask you a question & you can’t remember, just tell

them it’s written right on the statement, so look there.”

She is funny sometimes. I don’t know baby, I’m just

worried sick over it.

February 1, 2003

I’m in a single room now since I came back from

Allegheny. I really hated it there. My att. [sic] made

sure they brought me back the next day cause he didn’t

want me to be there. He is the shit. Federal P.D.’s

actually give a shit about you. When I went to fed court

the D.A. lady was so nice to me, she was the one who

suggested the O.R. bond for me. We talked for a min. [sic]

& I thanked her. So then, she found out I was still here

& she called the county D.A. & yelled at them. Can you

believe that babe? Because on Jan. 21" I went in front of

Pezze for my charges to be noll [sic] pross & they

continued it because they didn’t have the paperwork yet

66a

from fed court. So she & my att.[sic] are on it & he said I

should get a hearing real soon. And then hopefully that

day or before, McCormick will lift my detainer. But I am

worried that he will decide to violate me already to my

new charges since I plead [sic] guilty. Do you think he

will? This whole damn situation is a bitch, if it’s not one

thing, it’s another.

February 3, 2003

I really hope I get a hearing this month. I told my mom

how McCormick might decide to violate me on my sales

already & she said I’ve already done 6, what more could

they want. I don't know what do you think about that?.

February 5, 2003

I called the P.D.’s office like 3 times today. Neither

Bertani or Cechetti were in. I asked the secretary if I

was listed for court & she said not yet. I am getting

pissed. I know you probably say I shouldn’t be

complaining cause at least I’m getting out soon. But

babe, it aint [sic] soon enough. I had my heart set on

leaving. I just miss Casey so much. I almost feel like

she’s a stranger to me & I gave birth to her. But I had to

go fuck it all up & leave her. I beat myself up everyday

for what I’ve done. I don’t think I can forgive myself until

Iam home & I'm a good mother & I’m doing the right

thing. You know what I’m saying?

February 7, 2003

67a

There’s a possibility that we may be home around the

same time if you get pre because my att.|sic] told me

today that I have to have a revocation hearing for

McCormick to lift the detainer. He said it won’t be for a

month or so. My lips are so chapped right now. I lost my

Carimex a few days ago. Oh the Dr’s [sic] name is

Rottshaeffer [sic], he’s from Oakmont. I read the same

article about that other dude. I don’t know how these

Dr.’s think that they can get away with that shit. They're

stupid.

** KK *

Oh & everything you read in the paper is true except my

age. And they told me if I do everything right on pre trial

when I get sentenced they will give me time served. So

no, { won’t have to go to Fed. I'll be home free with you &

Case. [sic] I am so looking forward to that.

February 17, 2003

I’m still waiting patiently for a court date, you'll be the

first to know. .

February 21, 2003

These places are so nerve racking, neither one of us

belong here. Well maybe I do cause I did do wrong, but

you definately [sic] don’t.

**A KK

68a

Babe, I have done so many wrongful things to my gram

like stealing money & jewlry [sic] that my pap gave to her

& went & pawned it. I feel so terrible about it cause she

still gave me everything I ever wanted, you know? I still

don’t know if she knows but I think she probably does.

Tell me if you think I should apologize for stealing from

her or if I should just leave it alone. She will never

understand the disease of addiction, she is a full blown

Catholic.

February 23, 2003

I got bad news yesterday. Ernie died Mon.|[sic] night. I’m

really upset, especially for my mom & even Casey. Casey

loved her Pap Ernie so much. He was closer to her than

he was his real granddaughter. The councelor [sic] let me

call my mom yesterday & she was pretty upset. My

att.[sic] told her the only way I could go to the funeral is

if I went shackled & paid $300.00. I don’t want to go like

that plus she don’t have the money. So I’m not going

Babe. I wish you were here right now. I’m really going

through it. Remember how I was telling you about my

grandpap dying before I could make things right between

us? Well, this is the same shit. I’ve done so much shit to

Ernie & the last time I saw him I was all cracked out. He

did so much for me, too. He was more of a father to me

than my dad was & I shit on him.

February 28, 2003

Hi babe, guess what babe. I got a court date for March

26" for the revocation & the nolle pross. On that date it'll

‘ 69a

be exactly 8 mos.[sic] since I been here. So I’m hoping

that’s how long McCormick wanted me to sit. But I am

not getting my hopes up & setting myself up for

disappointment. AGAIN!

March 7, 2003

But you’re absolutely right. I need to dig myself out of

this self pity mode, since I got a court date I’ve felt more

hopeful & thanks to you also, babe. You are the one who

needs to be complaining, not me. And yes, you definately

[sic] are the strong minded one. See babe, the reason why

I've been so down is cause you know that big secret I told

you about the doctor? Well, my stupid ass told someone

about it way back & I am scared to death that she will

reveal it & I'd never go home. She swears she’ll never tell

but I can’t help worrying. I know babe, that was dumber

than selling those drugs & I kick myself every fucking

day about it. I’ve always been too trusting with people.

My sentencing in fed was changed from April 11" to the

4". Babe, I swear to God, if anyone finds out my secret, I

will fucking murder someone & if I’m locked up I will put

a hit out for them. I fucking swear, babe! I’m so sorry

I’m talking like this but I’m just so scared, ya know? This

is why I need to talk to you in person so if it ever happens

you can help back me up, tell me babe? I know it would

never be you to reveal anything, so don’t think I’m

referring to you. Babe, maybe you should burn this letter

to be on the safe side, please do that for me, you can’t

trust no one.

kk eK

70a

Tm sorry [complain se much about being here, it’s just

that I could never deal with confinement & so much

authority & it’s so hard for me to adjust to a different

type of lifestyle. It’s even written in my presentence

report that I have what they call “Adjustment Disorder”

as well as personality disorder, whatever the fuck that

means.

March 13, 200°

Yesterday, I went & testified for Lacy & she got out. But

while I was talking, I was studdering [sic] & I was

nervous. So I was thinking if I couldn’t handle myself at

a stupid board hearing how the fuck will I do it if I have

to testify against the doctor? I just pray that he takes a

plea so I don’t have to.

March 18, 2003

But that explains why right before the seizure, that lady

was buzzing around the gym acting stupid as hell. I even

said to her “what the hell's wrong with you?” Cause I

never saw her like that before. Babe, all these things I

see & hear really makes [sic] me realize what drugs will

do to someone & it’s scary as fuck! Oh God babe, I just

thought of something. That time when I OD'd at

Michelle’s, they said I just sat in the chair staring at

nothing while I foamed at the mouth & the awful thing

about it was Casey was right there to see it. She kept

saying “mama, mama.” I was petrified tonight just seeing

a stranger doing that, can you imagine how Casey felt

seeing her mom like that? Babe, I don’t ever want to put

Tla

her or our new kids through any trauma like that ever

again. I am determined to live a good happy life with you

& our kids. For real babe, the drug life literally repulses

me to no limit

“March 22, 2003

I had an awful dream last night. I haven’t had a drug

dream in a while either. I walked into this bathroom

somewhere & there were 2 bags of H on top of the tampon

dispenser & I grabbed them. I remember thinking God,

make me throw these away, don’t let me use. But I

snorted them anyway. Babe, I know why I had that

dream, it’s cause I am so worried that I won't be able to

fight off temptations out there.

“March 23-2003

I’m also gonna tell him that my dad has a job waiting for

me. He doesn’t, but he told me to say that anyway.

March 26, 2003

Hi babe, well sweetheart, McCormick gave me 9-23 mos.

[sic] for the burglary. He said that I'd get credit for time

served but I don't know if I get credit back from July or

Oct. As soon as he sentenced me they immediately cuffed

me & started pulling my arm. I had the asshole, John

Sweeney, who didn't know shit about me & I don't think

he knew how long I've been in here. So I said to him "So

how much more time is that?" he said "You have to do 4

more mos [sic}." Then I got all choked up & didn't even

72a

think to ask him if I'd get credit back to July. My poor

mom couldn't believe it, she was ready to go off. :

*k eH *

And all I want is to go home to Casey & my mom & be a

mother again.

kK eK

For some reason the Nolle Pross hearing was continued.

I don’t know if they want to wait till after my sentencing

on Apr. 11" or what. Baby, you need to get home as soon

as possible cause I need you. If something bad goes down

about the lie then I have a plan —I need you to back me

up, feel me, babe? But I won’t write about it unless it’s

absolutely necessary. The girl is Debbie Peterson, she got

out on Mar.[sic] 13". I heard she is doing good but you

never know if she’ll fuck up again & need something to

get her out of ajam. But all I can do now babe, is pray

about it & leave it in God’s hands.

March 28, 2003

I wrote that ass, John Sweeney. I gave him a sob story so

he'll help me. I never kissed anyone’s ass before but

when you break the law, you gotta do whatever it takes,

right?

73a

April 2, 2003

Hi babe, I’m sorry this won’t be the longest letter but I

have to get it out now so my mom gets her letter. I asked

her if she’d try to talk to Debbie cause I was just told that

she’s going to tell on me. I don’t know what else to do but

have my mom try & talk to her. Babe, I’m so scared. I’ve

been crying my eyes out for the past 3 hrs.[sic] But I will

tell you this, if she brings me down then she will never

get her daughter out of foster care. I have some dirt on

her as well that could put her & Joe, her husband away

for as long as I’m away. And that’s a promise! But try

not to worry, babe. I guess all we can do is fake it day by

day & pray about it. Who knows. I might end up telling

the feds my secret so maybe they'll go a little easier on

me. Who the hell knows.

April 7, 2003

OK, before I forget, about the violation. Well it’s a

violation of a burglary from 97. It has nothing to do with

my sales charges. I just figured it out the other night

that they violated me for non payment when I was on

house arrest in 2001. I completed it but didn't pay. So

I'm not eligible for good time & I can't get credit back

from July because from July to Oct. I was here on fed

charges. The only thing I might be eligible for is credit

from the time I did on house arrest, which was two

mos.|sic], therefore, I might be able to get 1 mo. [sic]

knocked off. I will write my att.[sic] to see. Now about

my secret, I found out that Debbie isn’t going to say

anything, I am positive about that. She said to wait &

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see if the Dr.[sic] takes a plea before I admit my secret.

Which I wasn’t gonna tell them I was lying, I was going to

withdraw my statement & plead the 5". I’m trying to get

my att. [sic] from fed here so I can tell him, he can’t say

anything or I could sue the fuck out of him. So he can

give me advise [sic] on what to do. Because babe, there is

no way I can testify in court or take a polygraph & I’m

not risking the chance of them hitting me with perjury,

you feel me babe? So if it came down to it, I'd much

rather do 18-24, 30-37, or 3 to 6, rather than an

additional 5 yrs.[sic] I received a notice last wk.|sic]

about my sentencing. It’s postponed for at least 120 days

& I think they want more cooperation from me. That’s

why I need to talk to Penn (my att) to see what the hell’s

going on. If the Doc [sic] takes a plea then I’m clear, if

not then Ill be in for no more than, shit I’m not sure

cause it all depends on if fed gives my case back to the

state courts. But don’t worry about it babe. Everything

will be alright. Just keep praying. But I'm still waiting

for them to violate me for my new charges. If they do

soon, I pray that they'll give me time served. What do

you think?

April 18, 2003

And listen, I don't go around bragging about my case to

any motherfucker in here. A lot of people know because

they knew that the marshals picked me up. And a lady

that was here was involved with the same thing as me &

she told our business. I did tell Debbie & ” know babe,

that was a big mistake.

75a

April 28, 2003

I talked to my fed P.D. today. Pinous let me call from his

office. He said he talked to Ceechetti and he told him my

minimum is July 21st but their trying to let me go home

in June. He thinks I should get a month credit from the

house arrest I did. So that's good news, babe.

April 30, 2003

Hi babe, well my worst fear is happening. I just talked to

my fed P.O. & he said the D.E.A. & the prosecutor is

coming to review my statements tomorrow. He said

they'll give me a copy of my last statement I made, which

is good. Babe, I wish I could talk to you right now about

this. So next wk [sic] on the 7" I'll be going in front of a

grand jury but it’s not like what you went to. It’s just for

the D.A. to ask me questions in front of the judge & jury

so they have enough to indict him. He still may take a

plea. His att.[sic] won’t be there to grill me, which is good

too. As long as I get a copy of my old statement I can look

at it & go over it. Well, I’ve been thinking about all this

&.I decided to quit worrying & just be confident & do

what I need to do to get thru it. And if the worst

happens, I'll try & be prepared to do some time in fed

prison. I made a huge mistake & if God wants me

punished then Ill just have to accept it. I just have to

leave it in God’s hands. I just feel so guilty, you know. I

want to do the right thing but I also want to go home to

Casey & you & my mom. You know, people that don’t

have kids & come to jail have it made.

76a

May 1, 2003

Hi sweety, I love you and miss you as always. I just came

back from talking to those people. And it actually went

pretty good. They were so nice to me &

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