Three Felonies a Day

by Harvey Silverglate

  11 Chris Cillizza, “The Best House Ads,” The Fix (Washingtonpost.com blog), November 11, 2008, available at http://voices.washingtonpost.com/thefix/2008/11/the_best_house_ads.html.

  12 Jonathan Kaufman, “Serving the public–or themselves? Official corruption here reaches dizzying heights,” The Boston Globe, June 24, 1984, p. A21.

  13 Mark L. Wolf helped orchestrate the operation. Weld’s top deputy who nearly became the U.S. attorney instead of Weld, Wolf had cut his teeth as a top assistant to Attorney General Edward H. Levi–the former law professor tapped by Gerald Ford to clean up the discredited Department of Justice and FBI in the wake of the Watergate scandal. Levi’s predecessor as attorney general, John N. Mitchell, left the office in disgrace, eventually serving a prison term for obstruction of justice and related crimes. Well-known then and later (he was eventually named a federal district judge, a position he has served with distinction) for a low tolerance for corruption, Wolf was the ideal post-Watergate DOJ policymaker and administrator. For the same reason, he seemed a natural for helping Weld root out corruption in Boston’s City Hall. Rounding out the top team were Robert J. Cordy, a former Dartmouth football player, public defender and later private practitioner who went on to a seat on the Supreme Judicial Court of Massachusetts (appointed by Governor Paul Cellucci, Weld’s protégé, in 2001), and Daniel I. Small, who eventually left the U.S. attorney’s office for a successful career as a white collar criminal defense lawyer and sought-after continuing legal education lecturer.

  14 United States v. Anzalone, 766 F.2d 676, 1985 U.S. App. LEXIS 20143 (1985).

  15 Quoting the former totalitarian Communist state’s Criminal Code, the court drove the point home:If any socially dangerous act has not been directly provided for by the present Code, the basis and extent of liability for it is determined by applying to it those articles of the Code which deal with the offences [sic] most similar in nature.

  16 The new crime of the depositor’s structuring a transaction in order to evade the bank’s reporting obligations was created on October 27, 1986. See 31 U.S.C. § 5324.

  17 American Bar Association Committee on Government Standards, “Keeping Faith: Government Ethics and Government Ethics Regulation,” 45 Admin. L. Rev. 287, 304-305 (1993).

  18 “The Political Profiling of Elected Democratic Officials: When Rhetorical Vision Participation Runs Amok,” EPluribus Media, February 18, 2007.

  19 “An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General,” The DOJ Office of Professional Responsibility and the DOJ Office of the Inspector General, July 28, 2008.Available at: http://www.usdoj.gov/oig/special/s0807/final.pdf.

  20 Scott Horton, “Vote Machine: How Republicans Hacked the Justice Department,” Harper’s, March 2008.

  21 “Petition in Support of Governor Siegelman.” July 13, 2007. Available at http://donsiegelman.net/files/letter_from_44.pd; last accessed May 4, 2009.

  22 Adam Cohen, “The Strange Case of an Imprisoned Alabama Governor,” The New York Times, September 10, 2007.

  23 Adam Nossiter, “Freed Ex-Governor of Alabama Talks of Abuse of Power,” The New York Times, March 29, 2008.

  24 Id.

  25 18 U.S.C. §§ 2 & 666(a)(1)(B), federal funds bribery.

  26 18 U.S.C. § 371.

  27 18 U.S.C. §§ 2, 1241 & 1346.

  28 18 U.S.C. § 1951 (extortion under color of official right).

  29 RICO, 18 U.S.C § 1962(c).

  30 Scott Horton, “Vote Machine: How Republicans Hacked the Justice Department,” Harper’s, March 2008.

  31 Julian McPhillips, “Alabama Voices,” The Montgomery Advertiser, June 20, 2007.

  32 Scott Horton, “Vote Machine: How Republicans Hacked the Justice Department,” Harper’s, March 2008.

  33 United States v. Siegelman, No. 07-13163-B (11th Cir., 2008) (Black and Marcus, Circuit Judges), Order dated March 27, 2008.

  34 According to The Boston Globe in 1993, “the fact that State Representative Thomas Finneran (D-Mattapan), an Irish-Catholic politician who lives in a district that is majority minority, wins re-election easily is often cited as evidence that the black leadership has failed to maximize its opportunities.” See Chris Black, “Minorities left on outside of citywide office,” The Boston Globe, November 15, 1993, p. B1.

  35 In a 1998 Boston Globe Magazine profile, columnist Adrian Walker wrote that “though Rushing, a textbook liberal, differs politically from the more conservative Finneran, they’ve always respected each other’s intellect and integrity.” See Adrian Walker, “House Rules,” Boston Globe Magazine, June 28, 1998, available at http://graphics.boston.com/globe/magazine/1998/6-28/featurestory/.

  36 Harvey A. Silverglate, “Finneran’s Wake,” The Boston Phoenix, June 24, 2005.

  37 Black Political Task Force v. Galvin, 300 F.Supp.2d 294 (2004).

  38 J.M. Lawrence, “Common Cause Took Aim at Tom,” The Boston Herald, June 8, 2005.

  39 18 U.S.C. § 1001, the so-called “false statement” statute, provides:Whoever…knowingly and willfully—1. falsifies, conceals, or covers up by any trick, scheme, or device, a material fact;

  2. makes any materially false, fictitious, or fraudulent statement or representation; or

  3. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

  shall be fined under this title, imprisoned not more than 5 years or…both.

  40 There was an obstruction of justice charge that Finneran had failed to produce certain documents and lied about their existence. It was dismissed as part of the later plea bargain.

  41 A federal appellate court once described a perjury trap in the following terms:A perjury trap is created when the government calls a witness before the grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury. United States v. Simone, 627 F.Supp. 1264, 1268 (D.N.J., 1986) (perjury trap involves “the deliberate use of a judicial proceeding to secure perjured testimony, a concept in itself abhorrent”). It involves the government’s use of its investigatory powers to secure a perjury indictment on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury. United States v. Chen, 933 F.2d 793, 797 (9th Cir., 1991).

  The investigation and prosecution of former White House vice-presidential advisor during the George W. Bush administration, I. Lewis “Scooter” Libby, is a case in point. There, a special prosecutor indicted, tried and convicted Libby for lying to federal investigators and to the grand jury about an incident in which, it turned out, several administration operatives leaked to the news media apparently confidential information about the identity of a CIA operative, Valerie Plame Wilson. No one was ever prosecuted for the leak, and indeed it was never firmly established that the leaking itself was a crime.

  However, as is becoming more and more the case in the federal system, if the underlying crime (if, indeed, it be a crime at all) doesn’t get you, surely the cover-up will.

  42 Harvey A. Silverglate, “Finneran’s Wake: U.S. Attorney Michael Sullivan is Riding High on the Former House Speaker’s Perjury Indictment. Too Bad It’s Misguided,” The Boston Phoenix, June 24, 2005.

  43 I thank Samuel Abady for pointing out to me that this memorable statement comes from Sol Wachtler, the former Chief Judge of the Court of Appeals of New York, who himself later went to federal prison for harassing his girlfriend, Joy Silverman, by using the facilities of interstate communications, a case seen by some at the time as a dubious extension of the federal statute. Wachtler made the statement about grand juries in general, both state and federal, in an interview with The New York Daily News, in which he proposed abolishing grand juries entirely and allowing prosecutors to bring charges, since grand juries in the modern age were no longer serving their original protective function of checking the power of prosecutors to bring charges. See Frank Lombardi & Marcia Kram
er, “New top state judge: Abolish grand juries & let us decide,” The New York Daily News, January 31, 1985, p. 3.

  44 Shelley Murphy & Stephanie Ebbert, “‘The wound…will hurt for the rest of my life,’” The Boston Globe, January 6, 2007, p. 1.

  45 Plea and disposition transcript, United States v. Thomas M. Finneran, Criminal Action No. 05-10140-RGS, January 5, 2007, at p. 19.

  46 Laurel Sweet, “Witness says Finneran was victim of ‘witch hunt,’” The Boston Herald, December 19, 2007.

  Chapter Two:

  1 Maia Szalavitz, “Dr. Feelscared: Drug warriors put the fear of prosecution in physicians who dare to treat pain,” Reason Online, http://www.reason.com/0408/fe.ms.dr.shtml.

  2 Disclosure: The law firm to which the author is “of counsel” represented one of Purdue Pharma’s executives.

  3 According to pain therapists and The Diagnostic and Statistical Manual of Mental Disorders, people who suffer from addiction exhibit: (1) loss of control over use of the drug, (2) continued use despite adverse life consequences, and (3) obsessive preoccupation with obtaining the drug and with its physical and psychic impact. A patient who makes fraudulent representations to the physician in order to obtain narcotics to “get high” is likely addicted, so that the withdrawal of the drug itself causes intense physical and psychological pain.

  4 Interview via email exchanges with pain expert Jennifer Schneider, M.D., in July 2007. Dr. Schneider is an internal medicine, addiction medicine, and pain management specialist, certified by the American Board of Internal Medicine and the American Society of Addiction Medicine.

  5 Lester Grinspoon & James Bakalar, Marihuana: The Forbidden Medicine, Yale University Press, 1997.

  6 See Gonzales v. Raich, 545 U.S. 1 (2005), concerning the DEA’s war against medical uses of marijuana.

  7 Jerry Markon, “Virginia Doctor Defends Prescribing Pain Pills,” The Washington Post, December 7, 2004.

  8 Ronald T. Libby, “Treating Doctors as Drug Dealers: The DEA’s War on Prescription Painkillers,” Policy Analysis, No. 545, June 16, 2005 (CATO Institute), p. 7.

  9 John Laidler, “Grants to help combat drug use: Local programs expected to target OxyContin, heroin,” The Boston Globe, August 8, 2004.

  10 Quoted in Ronald T. Libby, “Treating Doctors as Drug Dealers,” at p. 12.

  11 Prescription Pain Medications: Frequently Asked Questions and Answers for Health Care Professionals, and Law Enforcement Personnel, 2004. Archived versionAvailable at http://www.painfoundation.org/eNews2004/0904/PainMedLegalFAQ.pdf; last accessed June 2, 2008.

  12 Maia Szalavitz, “Dr. Feelscared: Drug warriors put the fear of prosecution in physicians who dare to treat pain,” Reason Online, http://www.reason.com/0408/fe.ms.dr.shtml.

  13 Jerry Markon, “Pain Doctor ‘Cavalier,’ Jury Foreman Says,” The Washington Post, December 21, 2004.

  14 Jacob Sullum, “Chilling Conviction,” The Washington Times, December 26, 2004.

  15 United States v. Hurwitz, 459 F.3d 363, (4th Cir. 2006).

  16 Tina Rosenberg calls Dr. Portenoy “a leading authority on the treatment of pain” in her article “When is a Pain Doctor a Drug Pusher?” The New York Times Magazine, June 17, 2007.

  17 John Tierney, “At Trial, Pain Has a Witness,” The New York Times, April 24, 2007.

  18 John Tierney, “Dr. Hurwitz Convicted on 16 Counts of Drug Trafficking,” NYTimes blog, April 27, 2007, available at http://tierneylab.blogs.nytimes.com/2007/04/27/drhurwitz-convicted-of-16-drug-trafficking-charges/.

  19 John Tierney, “Hurwitz Jurors Explain Their Verdict,” NYTimes blog, April 30, 2007, available at http://tierneylab.blogs.nytimes.com/2007/04/30/hurwitz-jurors-explaintheir-verdict/.

  20 Id.

  21 Ronald T. Libby, “Treating Doctors as Drug Dealers: The DEA’s War on Prescription Painkillers,” Policy Analysis, No. 545, June 16, 2005 (CATO Institute), pp. 20-21.

  22 Gary Langer, “Poll: Americans Searching for Pain Relief,” ABC News Online, May 9, 2005, available at http://abcnews.go.com/Health/PainManagement/story?id=732395.

  23 Tina Rosenberg, “When is a Pain Doctor a Drug Pusher?” The New York Times Magazine, June 17, 2007.

  24 R. Morgan Griffin, “Safe Pain Relief With Aspirin Therapy,” WebMD (peer reviewed article), available at http://www.webmd.com/heart-disease/features/safe-pain-reliefaspirin-therapy?page=2.

  25 Maia Szalavitz, “The Pain Police: Hurwitz Case Shows Doctors Can Be Healers or Cops–Not Both,” Huffingtonpost.com, April 30, 2007, available at http://www.huffingtonpost. com/maia-szalavitz/the-pain-police-hurwitz_b_47263.html.

  26 Maia Szalavitz, “Dr. Feelscared: Drug warriors put the fear of prosecution in physicians who dare to treat pain,” Reason Online, http://www.reason.com/0408/fe.ms. dr.shtml.

  27 “Dr. Cecil Knox Surrenders Medical License and DEA Registration Number; Sentenced to Five Years Probation,” U.S. Department of Justice Press Release, January 20, 2006, available at http://www.usdoj.gov/usao/vaw/press_releases/knox_20jan2006.html.

  28 Dr. Jennifer P. Schneider, who was an expert witness in Dr. Hassman’s case, reports that, in the end, the prosecutor recognized that the charges were absurd and settled, instead, for a plea bargain to four new, unrelated counts that charged, essentially, that Dr. Hassman did not report patients who had admitted to her that they had given to or taken from a family member an opioid pill—a practice engaged in millions of times a year by pain patients. The charges concerning the physician’s duty to report what the patient told her were so dubious that, reports Dr. Schneider, “her lawyer and the government lawyer were worried that the judge would realize that these weren’t real felonies and would throw out the plea agreement, but it seems the judge didn’t realize this and accepted it.” Email interview of Dr. Schneider, dated July 8, 2007.

  29 Maia Szalavitz, “Dr. Feelscared: Drug warriors put the fear of prosecution in physicians who dare to treat pain,” Reason Online, http://www.reason.com/0408/fe.ms. dr.shtml.

  30 Timothy E. Quill, M.D., & Diane E. Meier, M.D., “The Big Chill–Inserting the DEA into End-of-Life Care,” The New England Journal of Medicine, January 5, 2006.

  31 George J. Annas, “Congress, Controlled Substances, and Physician-Assisted Suicide–Elephants in Mouseholes,” The New England Journal of Medicine, March 9, 2006.

  32 Gonzales v. Oregon, 126 S.Ct. 904, 2006 U.S. LEXIS 767 (2006).

  33 The Pain Relief Network, more than any other group, has sought to expose and combat this de facto establishment of a national law enforcement, rather than a state medical standard, for treatment of pain. See www.painreliefnetwork.org.

  34 21 U.S.C. §§ 301 et seq.

  35 Alex Berenson, “Indictment of Doctor Tests Drug Marketing Rules,” The New York Times, July 22, 2006.

  36 A familiar example of this phenomenon of secondary therapeutic uses is aspirin, a drug that does not require any prescription. Aspirin is typically used to treat pain or high fever and has been so used for well over a century. However, in more recent years physicians have been recommending that their middle-aged patients take aspirin daily to thin out their blood and thereby prevent heart attacks resulting from blood clots. Were aspirin a prescription drug, the manufacturers would not be allowed to recommend it as a heart-attack preventative unless and until they convinced the FDA to include such a use on the label. Yet physicians would be free, based upon their own treatment experience and medical judgment, to recommend or prescribe it to their patients regardless of the restrictions that the labeling rules impose on the manufacturer.

  37 Email from Jennifer P. Schneider, M.D., to Harvey A. Silverglate, dated July 8, 2007.

  38 Black’s Law Dictionary defines a conspiracy as “an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective.”

  39 “Federal Justice Statistics,” U.S. Department of Justice, Bureau of Justice Statistics. Available at http://www.ojp.usdoj.gov/bjs/fed.htm; last accessed February 23, 2009.r />
  40 Dr. Gleason’s sentencing was pending as of publication.

  41 Carey Goldberg, “‘No’ to drug money: Dr. Daniel J. Carlat wants to limit corporate sway over psychiatry,” The Boston Globe, May 7, 2007.

  42 Dr. Jerome P. Kassirer, On the Take (New York: Oxford University Press, 2004).

  43 United States v. Migliaccio and United States v. Avery, cases consolidated on appeal, reported at 34 F.3d 1517, 1994 U.S. App. LEXIS 24278 (10th Cir., 1994).

  44 Indeed, Robert Wyatt, the trial attorney for the two doctors, who represented only Dr. Avery on appeal, showed the jury four medical dictionaries in which “salpingoplasty” was listed as one of the terms used for reversal of tubal ligations, but the government claimed that it was an obscure rather than commonly used term and hence was used to mislead the CHAMPUS personnel who reviewed the applications for payment. (Telephone interview of Attorney Robert Wyatt, Wyatt Law Office, Oklahoma City, OK, on December 14, 2007.)

  45 One of the most serious threats to pain doctors is the DEA’s technique of squeezing vulnerable patients to turn against their physicians. The phenomenon is well known to criminal defense lawyers and is amply described in a June 2005 Cato Institute policy analysis by Professor Ronald T. Libby of the University of North Florida.

  46 Telephone interview of Attorney Robert Wyatt on December 14, 2007.

  Chapter Three:

  1 21 U.S.C. §§ 360 et seq.

  2 21 U.S.C. §§ 360c et seq.

  3 Indicted with Leichter were John F. Cvinar, David W. Prigmore, George Maloney, Janice Piasecki, and Kenneth Thurston. Maloney and Thurston were acquitted by the jury and hence were not involved in the appeal. Piasecki was acquitted by Judge Tauro midway through the trial.