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No Double Jeopardy violation for this Pill Mill conspiracy charge

 

In U.S. v. Votrobek the appellants were convicted by a jury of conspiracy to distribute drugs, conspiracy to launder money and substantive charges of money laundering and maintaining a place for unlawful drug distribution.   The charges arose from their operation of a pill mill, a term used to describe a medical clinic that prescribes narcotics for illegitimate purposes. The appellants first learned how to run a pill mill clinic from a Zachary Rose who operated three clinics in Jacksonville Florida. Once law enforcement began investigating Rose’s clinics, the appellants left and established their own clinic, AMG, in the fashion of a typical pill mill.

Later, Votrobek was indicted for conspiracy to distribute Oxycodone and Alprazolam in Rose’s Florida clinics but a jury acquitted him.

Less than two months after his acquittal in Rose’s Florida pill mill, a Federal Grand jury in Georgia indicted Votrobek and others regarding their involvement in AMG, charging them with conspiracy to distribute Oxycodone, Xanax, and other drugs for other than a legitimate medical purpose. He was convicted on all counts. In his appeal, he claims the district court committed plain error by not dismissing the Georgia conspiracy charges on Double Jeopardy grounds. He argued the conspiracy counts were barred by Double Jeopardy and the trial court committed plain error by not dismissing the substantive convictions based on prejudicial spillover.

The 11th Circuit court of appeals rejected the Double Jeopardy challenge and found the government met its burden of showing that had shown that Votrobek committed two separate conspiracies. In reaching this decision the court of appeals found the government met the 5 factors required by United States v. Marable.

First, the Florida and Georgia conspiracies did not overlap in time and a temporal gap between the end of one conspiracy and the beginning of another indicates separate conspiracies. Second, different co-conspirators in Florida and Georgia indicate separate conspiracies. The only named participant the conspiracies had in common was Votrobek himself.   Third, though the offences charged in both indictments were almost the same, this factor is not controlling because it is possible to have two different conspiracies to commit exactly the same kind of crime. Fourth, the Florida and Georgia conspiracies involved similar but different overt acts. Different overt acts indicate separate conspiracies. Finally, the fifth factor strongly suggests the existence of two separate conspiracies because the conspiracies took place in two different places.

Another issue Votrobek raised in his Florida federal criminal drug charge, the district court denied his request for a Franks hearing based on certain alleged false statements in the affidavits used to obtain court authorization for telephone wiretaps.  A Franks challenge requires a defendant must make a substantial preliminary showing that (1) a false statement knowingly and intentionally or with reckless disregard for the truth was included by the affiant in the warrant affidavit and (2) the allegedly false statement is necessary for the finding of probable cause. After reviewing the evidence the court of appeals found that the defendant failed to make a substantial showing the agents statements were knowingly and intentionally false, or made in reckless disregard for the truth, and therefore the trial court did not abuse its discretion by not holding a Franks hearing.