The Pain Relief Network

On November 6, 2008, the jury returned a guilty verdict for Mr. Joseph on Count 1 of the Second Superseding Indictment, which charged Mr. Joseph with conspiring with Defendant Green and Defendant Mack to knowingly, willfully and intentionally distribute certain Schedule II, III, and IV controlled substances not for a legitimate medical purpose and outside the usual course of professional practice.  [Tab 250 (verdict); Tab 141, ¶ 23 (Second Superseding Indictment)].  The jury acquitted Mr. Joseph of Counts 3, 4, 6 and 14, which charged Mr. Joseph and Defendant Green with knowingly, willfully and intentionally distributing and dispensing controlled substances not for a legitimate medical purpose and outside the usual course of professional practice, and that death resulted from the use of the controlled substance so dispensed.  [Tab 250].

The evidence at trial showed that Mr. Joseph and his employee, Penny Tello, distributed fliers to Defendant Green’s medical clinic which contained directions to Jack’s Discount Pharmacy.  The undisputed evidence was that these same type fliers were distributed by Ms. Tello to other doctor’s offices, the hospital and a senior’s center in an order to promote Jack’s Discount Pharmacy.  In addition, “Cricket” Montgomery testified that she worked at Eisenhower Parkway Pharmacy, which was opened by Jack Joseph after he closed Jack’s Discount Pharmacy.  Ms. Montgomery testified that, like Ms. Tello, she distributed flier’s to various doctor’s offices in an effort to promote Jack’s Discount Pharmacy.  There was no evidence that Mr. Joseph did anything to promote his business with the patient’s of Defendant Green any differently than he promoted his business with other medical providers.

The government presented substantial evidence about the operation of Defendant Green’s medical office.  There was no evidence that Mr. Joseph was aware of the volume of patients being seen by Defendant Green, or that he was aware of potential inadequacies of Defendant Green’s medical treatment or of his medical records.  All patient witnesses called by the government who deal with Jack’s Discount Pharmacy either testified they in fact were in pain and needed the medication, or that they lied to the pharmacist in order to get their medications filled.

The testimony at trial was uniform that patients had to sign a Pain Medicine Policy in order to receive narcotic pain relievers.  Each policy required the patient to designate the pharmacy at which the patient intended to have his or her prescriptions filled.  Not one patient designated Jack’s Discount Pharmacy on the Pain Medicine Policy, and there was no evidence that employees of Defendant Green required or even encouraged patients to utilize Jack’s Discount Pharmacy, as opposed to any other pharmacy.

The only evidence of any contact between Defendant Green and Mr. Joseph was the testimony of Lorne Tucker who described what he believed to be suspicious meetings between Defendant Green and Mr. Joseph.  The evidence showed, however, that Defendant Green was obtaining AIDS medications for his son, and he was concerned about keeping that matter private.  Defendant Green’s son was a lawyer in Perry, and one of the pharmacists employed by a chain pharmacy near Defendant Green’s office was the son of a local judge.

Ms. Howard with the DEA testified regarding statistical data she compiled from ARCOS reports regarding the number of prescriptions being filled by Jack’s Discount Pharmacy, compared to other pharmacies.  Ms. Howard testified that she was not testifying as to any conclusions that could be drawn from these reports, and she offered none to the jury.  She admitted that the DEA never studies whether drug seekers target independent pharmacies, such as Jack’s Discount Pharmacies, in order to take advantage of the fact that these pharmacies are not interconnected by computers like chain pharmacies.  No witness testified that the number of prescriptions being filled by Jack’s Discount Pharmacy constituted evidence that the prescriptions were not for a legitimate medical purpose and that Mr. Joseph knew the prescriptions were not for a legitimate medical purpose.

Several witnesses testified that Jack’s Discount Pharmacy looked like a normal pharmacy, that Jack seemed like a nice man, that he would have his kids at the pharmacy with him, and that many individuals testified they went to Jack’s Discount Pharmacy because it had the best prices in town.  Although a couple of witnesses testified that they observed what appeared to be suspicious activity in the shopping center parking lot where Jack’s Discount Pharmacy was located, no witness testified that this activity occurred when Mr. Joseph was present, that he observed the activity, or that he was ever even told about the activity.

The government presented evidence regarding the practice of other pharmacists in filling prescriptions written by Defendant Green.  What became clear was that up through July of 2002, most other pharmacies in Houston County were filling Defendant Green’s prescriptions for Soma (Carisoprodal), Xanax (Alprazolam), Oxycontin, and Oxycodone.  [Ex. JJ-12].  This changed once the Houston County Sheriff’s Office served search warrants on these pharmacies.  After that occurred, the pharmacies became more reluctant to fill Defendant Green’s prescriptions.  There was no evidence that Mr. Joseph, who did not open his pharmacy until approximately October of 2002, was aware of the service of any of these subpoenas.  Like these other pharmacies, however, when the Houston County Sheriff’s Office served a subpoena on Jack’s Discount Pharmacy at the end of March, 2003, the charts prepared by Paul Short and presented by the government showed that Mr. Joseph ceased filling many of Dr. Green’s prescriptions.  When pharmacist Ben Bartlett had a conversation with Mr. Joseph in April or May of 2003 to warn Mr. Joseph about Defendant Green’s prescriptions, Mr. Joseph truthfully informed Mr. Bartlett that he was not filling all of Defendant Green’s prescriptions.*

*Excerpts from MOTION FOR JUDGMENT OF ACQUITTAL, Nov 12, 2008