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United States v. Buckingham

United States District Court, N.D. Alabama, Southern Division

December 13, 2018

UNITED STATES OF AMERICA,
v.
JOHN LADD BUCKINGHAM, Defendant.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This case is before the court on three separate motions filed by Defendant Dr. John Ladd Buckingham: (1) his first motion to dismiss the indictment (Doc. # 29); (2) his second motion to dismiss the indictment (Doc. # 30); and (3) his motion to strike surplusage from the indictment (Doc. # 31).[1]

         In August 2018, the United States charged Dr. Buckingham in a 21-count indictment with various controlled substance offenses and other crimes arising out of his work as a physician at a pain clinic in Moody, Alabama. (Doc. # 1). Dr. Buckingham now seeks dismissal of the indictment based on the following assertions: (1) the government's preindictment delay in prosecution violated his Due Process rights; (2) Counts 1 and 19 are duplicitous; (3) the indictment contains multiplicitous counts; (4) Count 20 insufficiently alleges criminal conduct; and (5) the Controlled Substances Act is unconstitutionally vague as applied to him. He also asks the court to strike certain allegedly surplus and prejudicial language from the indictment. As explained below, none of Dr. Buckingham's arguments hold water. Accordingly, his motions to dismiss and motion to strike are all due to be denied.

         I. Factual and Procedural Background

          The indictment charges Dr. Buckingham and two other Defendants with various crimes arising out of their involvement with a pain clinic in Moody, Alabama. (Doc. # 1). According to the indictment, Dr. Buckingham was a licensed physician who worked at the pain clinic and was authorized to prescribe controlled substances, but was not himself a pain management specialist. (Id. at ¶ 5). The indictment alleges that, rather than providing legitimate pain management services, Dr. Buckingham and others at the clinic ran a high-volume “pill mill” operation in which large numbers of patients were prescribed schedule II controlled substances without first receiving proper medical evaluations and despite obvious signs that the patients were diverting and/or abusing the controlled substances. (Id. at ¶¶ 22-41).

         Count 1 of the indictment charges Dr. Buckingham with conspiracy to violate 21 U.S.C. § 841(a)(1) by prescribing numerous schedule II controlled substances outside the usual course of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. § 846. (Id. at ¶ 21). Counts 2 through 18 charge that, on seventeen separate occasions, Dr. Buckingham unlawfully dispensed schedule II controlled substances by means of prescriptions issued outside the usual course of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1). (Id. at ¶¶ 43-44). Count 19 charges Dr. Buckingham with maintaining a premises for the purpose of unlawfully distributing a controlled substance, in violation of 21 U.S.C. § 856(a)(1). (Id. at ¶ 46). Finally, Count 20 charges Dr. Buckingham with conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h). (Id. at ¶ 47).

         After an approximately three-year investigation, the United States indicted Dr. Buckingham on August 29, 2018. Dr. Buckingham now moves to dismiss the indictment or alternatively to strike certain language from the indictment for a variety of reasons, discussed below.

         II. Standard of Review

          A federal court may dismiss a criminal prosecution based on “a defect in the indictment.” Fed. R. Crim. P. 12(b)(3)(B). An indictment must contain “a plain, concise, and definite written statement of the essential facts constituting the offense charged, ” Fed. R. Crim. P. 7(c)(1), and must not join “two or more offenses in the same count” or charge “the same offense in more than one count, ” Fed. R. Crim. P. 12(b)(3)(B)(i)-(ii). “An indictment is sufficient if it: (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense.” United States v. Steele, 147 F.3d 1316, 1320 (11th Cir. 1998) (en banc) (internal quotation marks omitted). “In determining whether an indictment is sufficient, ” the court must “read it as a whole and give it a common sense construction.” United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009) (internal quotation marks omitted).

         III. Analysis

         Dr. Buckingham has moved to dismiss this prosecution on several grounds. First, he argues that the government's preindictment delay in bringing this prosecution has prejudiced his ability to mount an effective defense and therefore violated his Fifth Amendment right to Due Process. Second, he claims that Counts 1 and 19 of the indictment are duplicitous because they each charge two or more separate and distinct offenses. Third, he claims that the indictment charges a single offense -- the illegal distribution of a controlled substance -- in multiple counts, rendering the indictment multiplicitous. Fourth, he argues that Count 20 fails to allege facts sufficient to support the charge that Dr. Buckingham knowingly and voluntarily joined a conspiracy to engage in money laundering. Finally, Dr. Buckingham argues that the Controlled Substances Act provisions charged in the indictment are unconstitutionally vague as applied to him.

         Alternatively, Dr. Buckingham has also moved to strike what he claims is surplus and prejudicial language from the indictment. Specifically, Dr. Buckingham claims that the first 19 paragraphs of the indictment, which provide factual details regarding the operation of the pain clinic, are surplus and prejudicial and that the term “pill mill” in Count 1 is similarly prejudicial and conclusory.

         The court addresses each of Dr. Buckingham's arguments below but ultimately concludes that all are without merit. Accordingly, Dr. Buckingham's motions to dismiss and motion to strike are due to be denied.

         A. Defendant's Preindictment Delay Claim Fails as a Matter of Law

         The Supreme Court has long recognized that lengthy delays between the commission of a crime and arrest and prosecution for the crime may prejudice a defendant's ability to defend himself. United States v. Marion, 404 U.S. 307, 320-22 (1971). Ordinarily, statutes of limitations provide “the primary guarantee” “against bringing overly stale criminal charges.” United States v. Lovasco, 431 U.S. 783, 789 (1977) (internal quotation marks omitted). But even when a prosecutor brings charges within the statutorily prescribed limitations period, the Fifth Amendment's Due Process Clause still “has a limited role to play in protecting against oppressive delay.” Id.

         To establish a Due Process violation based on preindictment delay, a defendant must show “(1) actual prejudice to their defense from the delay; and (2) that the delay resulted from a deliberate design by the government to gain a tactical advantage.” United States v. Thomas, 62 F.3d 1332, 1339 (11th Cir. 1995). Dr. Buckingham's preindictment delay claim fails because he has failed to allege, much less offered to prove, that the government deliberately delayed his prosecution to gain a tactical advantage.

         Dr. Buckingham argues only that the delay has caused him actual prejudice and that the delay has in fact given the government a tactical advantage. (See Doc. # 29 at 1-3, 10). Nowhere does he allege or offer to prove that the government's delay in indicting him was a deliberate choice calculated to give the government a tactical advantage in this prosecution. The government “does not bear the burden of explaining the reason for [its] delay.” United States v. Ramirez, 491 Fed. App'x 65, 70 (11th Cir. 2012). Nevertheless, it has explained that the three-year delay in this case was for investigative purposes, which is perfectly proper (and indeed, desirable) under the Constitution. See Thomas, 62 F.3d at 1339-40; Lovasco, 431 U.S. at 795 (“Rather than deviating from elementary standards of ‘fair play and decency,' a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt.”). Because Dr. Buckingham bears the burden of showing that the preindictment delay was deliberate and for the purpose of gaining a tactical advantage, and because Dr. Buckingham has given no reason to think that the government's delay was in bad faith, his motion to dismiss the prosecution based on preindictment delay is due to be dismissed. See Thomas, 62 F.3d at 1339 (rejecting the defendants' Due Process claim based on a fifty-five month preindictment delay because they ...


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