Conspiracy to Distribute Controlled Substances (21 U.S.C. 841; 21 U.S.C. 846)

Under federal law, dispensing medications on the U.S. Department of Justices Controlled Substance Schedules without a valid prescription is considered a felony offense on par with selling illegal drugs. Depending on the specific medication involved, physicians, pharmacists, and other healthcare professionals found guilty of distributing controlled substances under 21 U.S.C. 841 can face years or decades behind bars, enormous fines, professional license suspension or revocation, loss of DEA registration, and other penalties. This applies to physicians who treat patients in person as well as telemedicine and telehealth providers. For example, under 21 U.S.C. 841(h)(2), telemedicine providers can be convicted and sentenced for:

• Writing a prescription for a controlled substance for the purpose of delivery, distribution, or dispensation by means of the Internet in violation of [federal law]; and
• Offering to fill a prescription for a controlled substance based solely on a consumers completion of an online medical questionnaire.

If you are under investigation for distributing controlled substances in violation of 21 U.S.C. 841, it is also important to be aware of the provisions of 21 U.S.C. 846. Under 21 U.S.C. 846, physicians, pharmacists, and other providers who attempt or conspire to distribute controlled substances can face the same penalties as those who are actually found in violation of 21 U.S.C. 841:

Any person who attempts or conspires to commit any offense defined in this subchapter [including 21 U.S.C. 841] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

Facing Allegations for Conspiracy to Distribute Controlled Substances

With the DOJ’s recent focus on opioid fraud and abuse, healthcare providers who prescribe and dispense opioids and other controlled substance medications are increasingly being targeted in federal investigations under the Controlled Substances Act. This includes investigations involving allegations of conspiracy to distribute controlled substances in violation of 21 U.S.C. 841. Since 21 U.S.C. 846 imposes the same penalties for conspiring to distribute controlled substances as 21 U.S.C. 841 imposes for successful distribution, and since a conspiracy does not have to result in commission of a crime in order to itself constitute a criminal offense, federal prosecutors routinely pursue conspiracy charges when they do not have sufficient evidence to pursue charges for illegal distribution.

By way of example, having any involvement in the prescribing, dispensing, or sale of the following types of medications in violation of the Controlled Substances Act has the potential to lead to an investigation for conspiracy to distribute controlled substances:

• Buprenorphine
• Codeine
• Demerol
• Hydrocodone (Vicodin)
• Methadone
• Morphine (Avinza or Kadian)
• Oxycodone (OxyContin or Percocet)
• Oxymorphone (Opana)
• Percodan
• Tylox

Of course, this list is not exhaustive. Providing a patient or non-patient with access to any drug on the DOJ’s Controlled Substance Schedules without a valid prescription has the potential to trigger a federal investigation.

What Is a Conspiracy to Distribute Controlled Substances?

You are being targeted in a federal investigation and you are confident that you have not provided anyone with a prescription medication in violation of federal law. This all begs the question: What is a conspiracy under federal law? There are three elements to a criminal conspiracy:

• An agreement to commit an illegal act (in this case, unlawful distribution of a controlled substance);
• Intent to commit the illegal act; and
• An overt act toward commission of the crime that is the subject of the conspiracy.

After reading this, you may be breathing a sigh of relief. You may be thinking, I never agreed to illegally sell prescriptions, nor did I ever intend to. I certainly never undertook an overt act toward illegally selling a prescription medication.

Unfortunately, your sigh of relief would be premature. In conspiracy cases, prosecutors will go to great lengths to argue for the existence of an agreement, and case law makes clear that no formal agreement is required. In fact, an agreement can be inferred from the circumstances of a particular relationship. If investigators or prosecutors are currently talking to other members of the alleged conspiracy, you have no idea what they may be saying in order to try to save themselves from prosecution. Prosecutors can seek to infer intent from the circumstances of a proposed or potential transaction as well. And even if you did not commit an overt act, if someone else did, this is enough to trigger culpability for a conspiracy under 21 U.S.C. 846.

Federal prosecutors will routinely pursue conspiracy allegations in cases where there appears to be evidence of:

• Operation of a pill mill or pain mill
• Patient referrals between physicians and pharmacists
• Prescribing medications outside of the doctor-patient relationship
• Prescribing medications without an in-person exam
• Rebate (or kickback) arrangements involving physicians, pharmacies, and pharmaceutical companies
• Telemedicine and telehealth practice

Defending Against Allegations of Conspiracy to Distribute Controlled Substances

When facing allegations of conspiracy to distribute controlled substances in violation of 21 U.S.C. 841, it is critical to intervene in the government’s investigation and begin taking proactive measures to protect yourself against criminal charges as soon as possible. Depending on the circumstances involved, you may have a variety of defenses available. For example, physicians, pharmacists, pharmaceutical company executives, and other healthcare providers will often be able to assert defenses, including:

• Lack of an agreement, intent, or overt act (failure to prove the elements of conspiracy)
• Transactions falling outside of the prohibitions of 21 U.S.C. 841
• Safe harbor protection under the Anti-Kickback Statute or Stark Law
• Unlawful search or seizure, or other constitutional violations

In order to effectively intervene in the government’s investigation and avoid mistakes that could actually increase your chances of being charged, you should hire experienced legal representation.Our attorneys routinely handles matters involving the DOJ, DEA, and other federal agencies. If you are at risk for federal prosecution, they can take action immediately to protect your interests.

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This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Merely reading this information does not create an attorney-client relationship. Prior results do not guarantee similar outcomes in the future. Oberheiden, P.C. is a Texas professional corporation with its headquarters in Dallas. The attorney on record limits his practice to federal law.