Conspiracy to Convict the Innocent

In 1983, the former Soviet Union shot down a Korean 747 carrying 269 people, including a US Senator, when it deviated into their airspace, claiming they thought it was a US spy plane.  I had just joined the US Marines a few months before and was waiting for a slot at boot camp, and I remember how mad this made me.  I also remember newspapers from that time printing silhouettes of different flying objects for the Soviets to ridicule their claims.  One showed the profiles of a 747, an SR-71, and a duck.

The point was that there was no spy plane at that time close to the size and appearance of a 747. Either they shot it down knowing it was a civilian airliner, or they were too incompetent to be shooting anything down at all. I feel that the time has come to do the same for the DEA since they seem to have so much trouble differentiating doctors trying to save their patients’ lives from drug dealers.  Or maybe, like the Soviets back then, they want to make a point and just don’t care.

We’ll give them the benefit of the doubt and help them out. Now, when identifying aircraft, it’s best to put the two side by side and point out differences. Let’s do that here by making clear to them what is and is not true criminal behavior regarding the practice of medicine.  We will compare and contrast the cases of two doctors who were included in large conspiracy prosecutions, to see what was alleged, what was proven, and the effect it had on the doctor’s lives.

According to a DOJ press release… And you probably know what I think about the accuracy of those, but if not; these are self-serving statements meant to support DOJ actions and not a truthful recitation. Be that as it may, we said we would give them the benefit of the doubt, so here we go. Dr. Lawrence Mark Sherman was a physician in his seventies who worked at a clinic first in Dearborn and later in Saint Clair Shores, Michigan. The clinic was called Tranquility Wellness Center and was not owned by Dr. Sherman.

The clinic was instead owned and operated by Janeice Burrell and Angelo Smith. Let’s look closely at the original indictment claims. These were that from March 2020 until June 2021, when a search warrant was served, the clinic owners and doctor “conspired” with other defendants to issue and dispense a large number of prescription opioids for “supposed patients” who did not have a legitimate medical need for the drug… according to the government.

The press release goes on to say that “Janeice Burrell and Smith paid Dr. Sherman in “cash” (quotations mine) through a peer-to-peer money transfer application per controlled substance prescription authorized.” Ok. This is not cash. Cash is green paper; debit cards, credit cards, and electronic transfers are NOT cash. Plus, Dr. Sherman was seventy years old.  Do you really think this man knows what P2P means? (I have a degree in computer science, and I don’t really know; my degree is from 1988)

It says that he was paid “per prescription,” but is that true?  If a patient got two prescriptions, was he paid double? Or did he get paid per patient seen? Many doctors do, and It makes a big difference. Every doctor gets paid by taking money from sick people or their insurance. Many insurances don’t pay enough to be worthwhile, and some clinics choose not to be in network with them. This is not a crime, no matter how much the government implies that it is.  This is the business of medicine in America.

And how much were the patients charged? If the doctor doesn’t own the clinic, they usually won’t have a clue.  Many employed or contracted physicians don’t have access to these details, and if the organization is truly criminal, they’ll hide this from the doctors.  The DEA might insist they “had to know or should have known!” But this is false. I’ve said it before. If government agencies were held to the same standards that they enforce on citizens, about 90% of the federal workforce would be in prison.

Let’s move on. Peter Burrell, Jr (son of Janeice?) was a “patient recruiter” finding and bringing patients to the clinic. Peter would then, according to the DOJ, fill the prescriptions and sell the medications on the street. Did Dr. Sherman know this? Doctors don’t sit out in the parking lot to see who rides with whom.  Wasn’t this the owner’s son? Patient recruiters can be illegal when it comes to federal programs or just extremely stupid when it comes to other patients.  Don’t do it or allow it, but did Sherman know?

The government will often argue that they don’t need to prove that a member of the “conspiracy” actually knew something, just that they should have known.  In my mind, this obviates mens rea.  If you don’t clearly and objectively know that something is happening and is illegal, you cannot possibly have the “evil mind” required to be guilty of a felony or be “willfully blind.”  Next, according to the indictment, Dr. Sherman issued 441,000 MMDE of Schedule II opioids. You know what’s coming next.

Let’s take this apart. 441,000 / 15 months is 29,400 MMDE per month. They said oxycodone and oxymorphone which has a 1.5x/mg conversion factor so 30 mg of oxycodone would = 45 MMDE and that would be about 653 pills per month. Divided by 20 working days would give us almost 33 pills per day on average. If we drop the dose to 10mg of oxycodone, we get 99 pills per day. These medications are usually prescribed TID to QID, so less than ten to as many as thirty patients a day.

Was this a pain clinic or a primary care that offered pain management? That would not be an unusual number of patients for a comprehensive care practice. Even a little light, perhaps. Now that we have some context, let’s move on. “The conservative street value is in excess of $6.6M.” I’m not familiar with the going street price, but if we assume the greatest number of pills. 29,400. And divide that by the dollar value given; we get $224.50.  I doubt that very seriously. Let’s look at some other statements.

Another article said, “3,000 opioid prescriptions,” so about 200 Rx per month over the fifteen-month period, which would be ten per working day. That does not seem excessive. “Tranquility Wellness Center accepted only cash and charged patients based on the quantity, type, and dosage of prescription opioids that the “patient” received.”  This is a key issue and the difference between real drug dealers and doctors just treating sick people.  The question is, did Dr. Sherman know how they were charging?

It seems to me that you have two clear criminals, Janeice and Peter, and possibly a third one, Angelo Smith.  But it is very likely that Dr. Sherman was just added in to pad the convictions and get that pelt on the wall. Most likely, he trusted the people owning the clinic to do the right thing and had no clue they were charging by the type and quantity of medication.  A rare true red flag. It is extremely unlikely that a physician in his golden years is going to “break bad” over a little bit of income.  So, was he framed?

And would the DEA try to do this to a doctor?  Let’s look at a very similar case. That of Dr. Barbara Marino from Tomball, Texas.  Dr. Marino worked for a company called Angels Clinica Familiar in Houston, Texas, according to the article. This article is announcing federal government actions against what they say is a vast conspiracy involving at least 41 individuals with a “pill mill” network of six clinics and fifteen pharmacies as well as other offices. Real pill mills make fake pills, but I’ve argued this point.

The government claims that this conspiracy distributed over 23,000,000 oxycodone, hydrocodone, and carisoprodol pills and included medical providers, clinic owners, managers, pharmacists, pharmacy owners and managers, and of course… Drug dealers.  Charges were brought by the Health Care Fraud Unit of the Criminal Division’s Fraud Section, which coordinated with US Attorneys from the Southern and Eastern Districts of Texas and the District of Massachusetts, with the DEA, FBI, and local police.

It was alleged that “crew leaders” rounded up “runners” who posed as patients to get prescriptions for controlled medications that would then be filled at pharmacies in the Houston area.  The DEA went on to define these terms for the court. The Texas Prescription Monitoring Program (“PMP”) was a database of all reported prescriptions for controlled substances that were issued and dispensed in Texas.” Most states now require, and all recommend, that doctors check the PMP before prescribing narcotics.

Pharmacies were required to report the patient’s name, particular controlled substance and dosage dispensed, quantity dispensed, number of days supplied, prescribing physician’s name, date the prescription was issued, dispensing pharmacy’s name, type of payment, and date. I’m not sure who decided that it was a good idea to give law enforcement access to such personal information without a subpoena or warrant, but there you are.

A “crew leader” finds and pays individuals, some of whom are homeless or impoverished, to pose as chronic pain patients; transports them (often in groups) to a clinic; coaches the patients to fill out patient intake documentation to support a prescription for pain medication and pays for the visit; takes the patient, or just the illegitimate prescription, to the pharmacy; and pays for and takes control of the prescription drugs, often to divert and sell them on the street for profit.

A “runner” is an individual who works for a crew leader and “runs” or coordinates, taking the individuals posing as patients to clinics and pharmacies to obtain controlled substances. A runner often transports the patients to the clinics or pharmacies for the crew leader and often pays the patients, clinics, and pharmacies on behalf of the crew leader. I’ve abbreviated these from their legalese and taken out all the “illegitimates” that do nothing to truly inform.

It goes on to say that one pharmacy in Houston dispensed the second-highest amount of oxycodone 30mg pills in Texas and the ninth-highest amount in the nation. Okay. Doesn’t some pharmacy in Texas HAVE to be the second highest (and did they take down number 1?)? I mean, what’s the largest city in Texas? Houston… And what’s the second most populous state in the union? Texas. The above statements have no meaning without context, but, as Colbert would say, they sound “truthy.”

Truthy statements, while not factual, just sound like they should be true, and they can be very persuasive. Statements like these are, in my opinion, meant to taint the jury pool.  Humans are emotional beings with terrible explicit memory, but a deep subconscious.  Police used to walk a victim down a hall with a handcuffed suspect on a bench before the lineup to plant the seed of guilt in a witness’s mind.  Probably still do. Works all the time. This is the medical equivalent.

That being said.  The allegations go on to state that “on certain occasions,” drug dealers and traffickers diverted and distributed controlled substances to the streets, with some going to Houston and some to Boston.  I don’t know what Texas drug dealer thought he would not stand out in Boston or vice versa, but I digress.  The above statements imply that on other occasions this did not happen.  That’s important.  Any equal number of patients, clinics, and pharmacies anywhere will have some diversion.

The DEA Special Agent in Charge said, “This type of criminal activity is, in part, what is fueling the 68,500 overdose deaths per year across the United States.” adding, “The DEA and our numerous law enforcement partners will not sit silently while drug dealers wearing lab coats conspire with street dealers to flood our communities with over 23 million dangerous and highly addictive pills.” This is always helpful to a conviction. Plant the “drug dealers wearing lab coats” meme before trial.

Recently, Dr. Stephen Loyd, the real Dr. Finnix from “Dopesick” fame, joined the DEA in Suffolk County, New York, where DEA Special Agent in Charge Frank Tarentino of the New York Division stated:

“According to the CDC, the leading cause of death among Americans ages 18 to 45 is drug overdoses and poisonings. It’s more than car accidents, more than gun violence and more than suicides.” Please note his use of the term poisonings. This is important. Most of these are not true overdoses.

These poisonings occur when abandoned pain and addiction patients think they are buying real hydrocodone, oxycodone, or even heroin but find instead fake pills made in Mexico that have been adulterated with fentanyl and xylazine.  Or fake heroin. He goes on, “In fact, 112,323 Americans died from drug overdoses and poisonings in a 12-month period ending in June of 2023. Fentanyl is killing Americans at catastrophic and record rates and was responsible for 70% of those deaths.”

This would prove beyond any sane doubt that prescription opiates are NOT the cause of these deaths.  Prescriptions for opiate medications have been dropping since 2012. Shortly thereafter, the death rate started climbing and has kept climbing despite prescriptions being back to 1993 levels, which was before the push to treat pain became prevalent. Real pills on the streets are bad, but they rarely kill, as everyone knows what they are taking.  Fake pills on the street are an absolutely deadly risk to everyone.

Agent Tarentino went on to say. “What we say in the DEA is that this is no longer a war on drugs. This is a fight to save lives. Every single day our top mission priority is to defeat the two most dominant cartels, the Sinaloa and Jalisco cartels who are responsible for mass producing the vast majority of fentanyl powder and pills that’s flowing into the United States at record rates and killing Americans.” I agree,

Good Sir. So stop locking up doctors trying to solve these problems and get your agents to the border.

Back to Dr. Marino. Dr. Marino was charged with being a part of a conspiracy, with the indictment claiming that “It was well known that the combination of high-dose opioids, including oxycodone or hydrocodone and carisoprodol significantly increased the risk of patient intoxication and overdose. “ First correction. Carisoprodol is not an opiate; it is a muscle relaxer called Soma. (Not the one from Brave New World). It does have a metabolite that can act somewhat like an opiate, though.

This metabolite is synergistic with opiates, amplifying their effects, and that brings up an important point. It is perfectly safe to prescribe almost any two medications together in the right dose. Even contraindicated medications like Bactrim and Warfarin.  Bactrim amplifies the anticoagulatory effects of Warfarin and is usually avoided, but when the patient is resistant to high doses of Warfarin, the doctor might drop the Warfarin dose and add a little Bactrim.  This is not a crime. This is medicine.

Rational polypharmacy is the practice of using lower doses of synergistic medications to avoid the side effects that follow high-dose therapy with almost any medication. Side effects are related to the total dose.  The therapeutic effect is related to the interactions of all the medications with the patient’s unique genetic and epigenetic characteristics.  It is not a crime to understand and use this process to help patients, but that doesn’t stop the DEA from putting hundreds of doctors in prison for it.

The DEA also loves to call certain medications or combinations by inflammatory street terms, which the media loves to pick up and parrot.  Once again playing on emotions to shut down rational thought. “The doctor was slangin’ Vegas Cocktails, Bars, and Purple Slurp!!”  Nonsense. The doctor prescribed a medication approved by the FDA.  You want it taken off the market? Go for it. But don’t blame doctors for using the tools they have, and if you must resort to these tactics, you’ve lost the argument.

They went on to say in Dr. Marino’s indictment… “Moreover, prescribing oxycodone or hydrocodone and carisoprodol often created a significant risk of diversion because the two drugs, prescribed together, were often highly abused and sought for a non-legitimate medical purpose due to the increased “high” a user may experience from taking hydrocodone or oxycodone along with carisoprodol.”  This is true and something you need to know.  Let’s cover a few of these.

Holy Trinity (no offense intended, blame the DEA): this is oxycodone, carisoprodol (Soma), and alprazolam (Xanax), all taken together.  These potentiate each other and should be avoided unless there are no other effective options. Maybe still avoid it so they don’t lock you up. I personally stopped prescribing Soma in combination with any opioid long ago, but patients will sometimes come to you on these.  Prescribing a different muscle relaxer solves the problem medically, but not with the DEA.

Dr. DEA redefined the “holy trinity” as any combination of any opiate, any muscle relaxer, and anything else. Even antibiotics. This is fraud on the court, in my opinion, but they get away with it unless your attorney is healthcare-informed and on their game. Good luck finding that combination. A Vegas cocktail is just hydrocodone and Soma at some trials and oxycodone and Soma at others. The DEA will pay some “expert” to say whatever is necessary to get a conviction.  Just remember Soma alone or not at all.

Codeine cough syrup is “Lean,” “Sizzurp,” “Purple Drank,” or “Purple Slurp,” I am told by my new best friend, ChatGPT 4o. Now, with more emotion, apparently. I’m not sure that’s a good idea but in case my future overlords are reading this, I’m fine with it. Known medically as Cheratussin AC. The AC stands for antitussive and codeine, by the way. Approved for use back in the 1830s, codeine breaks down slowly in most people to morphine, the only really effective cough treatment we’ve ever had.

Sadly, it became popular with people who like rap music and are more resistant to ultraviolet radiation than other members of the general population. This, as you know, cannot be tolerated by the DEA. Founded in the 1970s as a weapon to target hippies and black people, they have never strayed from that goal that I can see. Although promethazine with codeine (Cheratussin) is Schedule V, which means lower than low diversion and abuse risk, in court, the DEA will tell the jury it is HIGH in both metrics. Go figure.

Dr. Marino was a “purported” addiction specialist, according to the DEA. I love how they do this. It is so transparent. Everyone should go into court saying, “the purported DEA agent,” etc., until they stop this nonsense. Licensed since 1990, they said she prescribed “large volumes of controlled substances-primarily hydrocodone 10/325mg, oxycodone 30mg, and carisoprodol 350mg-from Angels Clinica.  Well, if this was a pain clinic, or a general practice clinic with pain management,  that would make sense.

“Defendants knowingly and intentionally combined, conspired, confederated, and agreed together and with each other, and with others known and unknown to the Grand Jury, to violate” 21USC841(a)(1)…

“…that is, to knowingly and intentionally unlawfully distribute and dispense, mixtures and substances containing a detectable amount of controlled substances, including oxycodone and hydrocodone, both Schedule II controlled substances, and other controlled substances…” This is the conspiracy part hook.

“…outside the usual course of professional practice and not for a legitimate medical purpose.”

And this, my colleagues, is the sinker.  These are not defined by any law or ruling.  I’ve given my definitions, and physicians think they know what these mean but understand that the court and jury may disagree.  Indeed, paid government expert medical witnesses will claim that the standard of care defined by these concepts exists only in the minds of these experts and not in any book or database.

“It was a purpose and object of the conspiracy for the Defendants…”,”…to unlawfully enrich themselves by, among other things: (a) distributing and dispensing controlled substances outside the usual course of professional practice and not for a legitimate medical purpose; (b) generating large profits from distributing and dispensing those controlled substances; and (c) diverting the proceeds from distributing and dispensing those controlled substances for their personal use and benefit.”

I don’t know how Dr. Sherman was being paid, but I have heard Dr. Marino speak, and she was paid a flat fee per patient seen.  Rather standard and definitely “the usual practice of medicine.” There was no claim of personal use of drugs made or evidence she received other payments.  Nothing of this sort was said of Dr. Sherman either.  So where is the crime for these doctors, you ask? What did they do wrong? According to the DEA, they knew or SHOULD HAVE KNOWN or were WILFULLY BLIND to something…

How can you be willfully blind to information you have no access to? The DEA will often say, “X% of their patients had a criminal record!” Dandy. So? We don’t have access to accurate databases with that information, AND it should not limit the treatment a patient receives.  It would be good to know, but what they want you to do is deny effective treatment to anyone with a record.  Or any traumatized woman or patient who “looks like an addict,” which I’ve seen them say in court-filed documents.

What does an addict look like? To the DEA, an addict looks just like a poor white person or any person of color. The statistics support this contention. Blacks and whites use drugs at the same rate, but blacks make up 18% of the general population and about 40% of the prison population. Usually, for drugs, as they are stopped more, searched more, prosecuted more, convicted more, and incarcerated more. Brown people at a slightly lower rate than blacks and my native brethren at the highest rate of all.

According to the DEA, these doctors were supposed to know that some patients came together in the same vehicle and went to the same pharmacy. Things it is impossible for the physician to track on every or even any patient. What are they supposed to do? Sit out in the parking lot with a lawn chair? In neither case did I see any sign of these doctors actually knowing what the companies were doing behind their backs.  This is supported by the fact that the owners quickly pleaded guilty and got sweet deals.

The doctors, on the other hand, were threatened with decades in prison.  It takes a lot of courage to fight charges like these, especially when the truly guilty usually have no problem lying about others on the stand. You face a bloated, uncaring machine fueled by an endless supply of taxpayer dollars that wants to throw everyone, even those tangentially involved in any crime, into its maw.  In these cases. Dr. Sherman was convicted and sentenced to spend twelve of his few remaining years in prison.

We will probably never have an opportunity to hear from Dr. Sherman, but Dr. Marion was not convicted, and she eloquently explains what happened here. Every prescribing provider in America needs to know the facts of these situations and how being morally innocent will make no difference at all. Perhaps someday, the federal government will be able to differentiate true criminals from those who have no access to, or are just not aware of, what others are doing.

Physicians cannot possibly provide good care for our patients if we are constantly tracking everyone else to see if they broke the law.