United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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. #
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
Factual and Procedural Background
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).
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).
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.
Standard of Review
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).
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.
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.
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.
Defendant's Preindictment Delay Claim Fails as a Matter
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
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
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 ...