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United States v. Saltzman

United States District Court, D. Columbia.

January 22, 2016

UNITED STATES OF AMERICA,
v.
ALAN J. SALTZMAN, D.O., et al., Defendants

          For TITILAYO AKINTOMIDE AKINYOYENU, also known as TOMMY AKIN, also known as TOMI, Defendant: David Schertler, SCHERTLER & ONORATO LLP, Washington, DC; George Allen Dale, LAW OFFICE OF G. ALLEN DALE, Washington, DC.

         For ALAN J. SALTZMAN, D.O., Defendant: John W.F. Chesley, LEAD ATTORNEY, Jeffrey S. Rosenberg, GIBSON, DUNN & CRUTCHER, LLP, Washington, DC.

         For USA, Plaintiff: John Philip Dominguez, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; Linda Ilene Marks, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

         MEMORANDUM OPINION

         JAMES E. BOASBERG, United States District Judge.

         While it is not uncommon for defendants to seek trial delays based on a lack of mental competence, it is far rarer to see a legitimate claim of physical incapacity. Yet that is what the Court now faces.

         Alan Saltzman, a doctor of osteopathy (D.O.) residing in south Florida, and Titilayo Akintomide Akinyoyenu, a pharmacist and owner of a retail pharmacy in Washington, D.C., were indicted in March 2015 on four conspiracy-related counts involving an alleged scheme to unlawfully distribute prescription drugs by internet and mail. Last July, Saltzman moved to sever and indefinitely postpone his trial on the ground of poor health. He suffers from a number of serious ailments and argues that a lengthy trial conducted far from his home would place him at great risk. The government does not dispute that Saltzman is unwell but believes that his medical needs may be accommodated by the Court in such a way that severance is not necessary.

         Convinced by persuasive testimony that a joint trial would at present constitute an unwarranted physical ordeal, the Court will grant Saltzman's Motion to Sever, but will order a continuance only through the end of Akinyoyenu's trial. The Court will at that point determine whether Saltzman is physically able to withstand his own separate trial.

         I. Background

         A. Procedural History

         According to the indictment, Defendants collaborated in a scheme to unlawfully fulfill tens of thousands of prescription drug orders. Pursuant to the alleged conspiracy, Saltzman would approve prescription-drug requests from online buyers without seeing, consulting, diagnosing, or evaluating those " patients." In that way, the government charges, he wrote prescriptions without having established a doctor-patient relationship, which is a prerequisite for the lawful distribution of a controlled substance. See Indictment, ¶ ¶ 13, 20. With Saltzman's prescriptions in hand, Akinyoyenu as pharmacist would then fill the orders despite knowing that the prescriptions were not bona fide. In this manner, the government alleges, Defendants completed upwards of 60,000 orders and took in approximately $8.4 million in proceeds. Id., ¶ ¶ 20, 22, 24.

         Saltzman was arraigned by videoconference in April 2015, see Minute Entry of Apr. 29, 2015, and placed on personal recognizance at his home in Florida. See ECF No. 13 (Order Setting Conditions of Release). In July 2015, on account of his poor health, he moved to sever his case from Akinyoyenu's and sought an indefinite continuance. See Mot. at 1-2. After briefing on the matter was complete, the Court held an evidentiary hearing on December 11, 2015, at which Saltzman, his wife Dorota, and his gastroenterologist and coordinator of care -- Dr. David Silver -- testified. See ECF No. 47 (Transcript).

         B. Saltzman's Medical Condition

         The central consideration in evaluating Defendant's Motion is his current physical condition, which the Court will describe by drawing on his physician's affidavits, the testimony presented at the December 2015 hearing, and the Court's observations of Saltzman at that time. Fortunately, the parties seem to agree on the medical evidence, with a dispute emerging only as to what legal conclusion may be drawn therefrom.

         Saltzman is 65 years old. See Mot., Exh. A (Affidavit of David Silver, M.D.), ¶ 9. He suffers from numerous interrelated ailments affecting his digestive, endocrine, circulatory, muscular, nervous, skeletal, and immune systems, all of which place substantial limits on his physical activity and require routinized treatment.

         1.Digestive ...


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