United States v. Michael

Summary

The court denied defendants Philip E. Michael II and Meds 2 Go Express Pharmacy, Inc.’s motion to dismiss Count 1 of a second superseding indictment charging conspiracy to unlawfully distribute and dispense controlled substances over the Internet. The court held that the indictment sufficiently alleged the time, means, objects, and knowing participation required for a conspiracy charge. It further held that Fioricet, containing the Schedule III controlled substance butalbital, remained subject to the prescription requirement for purposes of criminal prosecution notwithstanding an administrative exemption in 21 C.F.R. § 1308.32.

Holdings

1. Count 1 sufficiently charged a conspiracy to unlawfully distribute and dispense controlled substances because it alleged the time period, location, means, objects, participants, and unlawful conduct comprising the alleged agreement.
2. Fioricet remained a Schedule III controlled substance because it contained butalbital, a derivative of barbituric acid listed in Schedule III.
3. The exemption in 21 C.F.R. § 1308.32 did not authorize the distribution or dispensing of Fioricet without a valid prescription or through an unregistered online pharmacy for purposes of criminal charges under 21 U.S.C. § 841(h)(1).
4. The rule of lenity did not require dismissal of Count 1 because the statutory and regulatory language did not create the type of grievous ambiguity necessary to invoke lenity.

Questions Presented

1. Whether Count 1 of the Second Superseding Indictment sufficiently alleged the essential facts of a conspiracy to unlawfully distribute and dispense controlled substances.
2. Whether Fioricet remained a controlled substance notwithstanding 21 C.F.R. § 1308.32.
3. Whether 21 C.F.R. § 1308.32 authorized dispensing Fioricet without a valid prescription for purposes of criminal prosecution under 21 U.S.C. § 841(h)(1).
4. Whether the rule of lenity required dismissal because of alleged uncertainty concerning the effect of the exemption regulation.

Disposition

other