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Doctor’s conviction for unlawful distribution of Oxycodone upheld

Gayden’s career as a doctor ended after law enforcement began investigating his medical practice following tips that he was prescribing excessive amounts of Oxycodone. Drug Enforcement Agents reviewed his prescription records through the Florida Prescription Drug Monitoring Program (PDMP) and discovered that Gayden had a history of irregular prescribing practices including issuing scripts for opioids in higher quantities or greater potency and in greater frequency than the norm. The DEA issued a search warrant for his patient records. Through recordings made by undercover patient who visited his office they discovered long lines of patients waiting to get into Gayden’s office. Investigators also learned that Gayden insisted on cash only for his services.

Just before the five-year statute of limitations ran, a federal grand jury indicted Gayden on seven counts of unlawful distribution of a controlled substance in violation of 21 U.S.C. section 841(a)(1). Gayden was convicted following a jury trial and sentenced to 235 months in prison.

Several challenges to his federal drug distribution conviction failed to reverse his conviction. First, he claimed that the indictment was flawed because of a pre-indictment delay in violation of his Fifth Amendment rights. The appellate court rejected his argument because he could not show that the pre-indictment delay caused him actual substantial prejudice and that the delay was the product of a deliberate act by the government designed to gain a tactical advantage. At best his argument was the government failed to explain the delay and this placed the burden wrong party.

Next, Gayden claimed the evidence seized without a warrant from PDMP should be suppressed. But the appellate court rejected this claim because Gayden lacked a reasonable expectation of privacy in the information that was revealed to PDMP, a third party. It found Gayden did not have the same privacy interests as his patients do in his prescribing records. Furthermore, Gayden voluntarily decided to participate in the computerized tracking system and he voluntarily disclosed his prescribing records to the PDMP.

Gayden argued that the trial court should have excluded the government’s expert witness because the expert had reviewed irrelevant inflammatory information about Gayden before forming his opinion and argued that the expert’s opinion was subject to confirmation bias and therefore unreliable. The appellate court rejected his argument. “The fact that defense counsel had to make a difficult tactical decision to forgo asking questions to demonstrate bias in formulating his expert opinion, which would have required eliciting information that would have harmed Gayden if the jury heard it, is not the kind of Hobson’s choice that mandates striking the expert from testifying.”

He challenged his sentence claiming that that the trial court incorrectly included a drug quantity from earlier fraudulent prescriptions and that it considered medical necessity formulation from post-2010 medical guidelines, in violation of the ex post facto clause. Despite different versions of the Florida Administrative Code regarding the standard of case guidance for pain management medicine, it found Gayden’s conduct was prohibited under either version of the standard of care by considering pre-2010 prescriptions in calculating the total drug weight.





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