United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY, Chief District Judge.
Presently before this Court is the government's motion for entry of a preliminary order of forfeiture against Defendant John E. Maye. (Docket No. 268.) The government contends that forfeiture is proper and required as the result of Maye's convictions after trial for distributing and dispensing controlled substances other than for a legitimate medical purpose and not in the usual course of professional practice, in violation of 21 U.S.C. § 841 (a)(1). (Docket No. 252.) Maye, who elected to have this Court determine forfeiture, contends that the government has failed to meet its burden of proving, by a preponderance of the evidence, that it is entitled to the preliminary order of forfeiture that it seeks.
For the reasons explained below, this Court finds that the government's entitlement to forfeiture is limited to the proceeds of the discrete violations for which Maye was convicted and the property that he used to facilitate his crimes. Accordingly, this Court will grant the government's request for entry of a preliminary order of forfeiture, but not in the amount requested.
On April 29, 2010, a federal grand jury returned a 34-count Second Superseding Indictment against Maye. (Docket No. 82.) Count 1 charged Maye with conspiring to distribute and dispense controlled substances other than for a legitimate medical purpose and not in the usual course of professional practice, and conspiring to use communication facilities to facilitate the commission of felony violations, all in violation of 21 U.S.C. § 846. Counts 2-34 charged Maye with 33 separate acts of distributing and dispensing controlled substances other than for a legitimate medical purpose and not in the usual course of professional practice, in violation of 21 U.S.C. § 841 (a)(1). The Second Superseding Indictment also included a forfeiture count, which sought the forfeiture of currency, vehicles, computers, and real property, for each offense of conviction, pursuant to 21 U.S.C. § 853. (Docket No. 82.)
The indictment stemmed from a combined investigation by the U.S. Drug Enforcement Administration and the U.S. Food and Drug Administration into Maye's practice of prescribing controlled substances over the Internet through online pharmacies. In March 2004, Maye advised the New York State Office of Professional Medical Conduct ("OPMC") that he would be resuming the practice of medicine, after previously having been suspended by the OPMC due to a criminal conviction under federal law. Maye advised OPMC that he would be engaged as a "telemedicine consultant" to provide medical consultations by telephone and online to customers seeking to obtain medications over the Internet. Maye further advised that he would establish bona fide physician-patient relationships with his customers, as required by state licensor.
Thereafter, Maye embarked on his "telemedicine consultant" career. Working from his residence, Maye fielded telephone calls and Internet communications from customers seeking prescriptions for controlled substances to be filled by associated online pharmacies. Customers placed orders with online pharmacies and completed questionnaires, which were then referred to Maye for authorization. Working with an assistant, Maye conducted patient interviews, obtained medical histories, reviewed and requested patient files, and approved or denied prescription requests, all by telephone and online. Maye transmitted approved prescriptions to online pharmacies, which then processed the orders and delivered the controlled substances to customers. Maye received $10 per order that he reviewed, whether he approved or denied it. He never personally met, consulted with, or examined any patients.
Trial began on September 20, 2013, and concluded on October 8, 2013. Upon the close of the government's proof, this Court granted Maye's Rule 29 motion as to Count 1 (conspiracy) and denied it as to the remaining counts in the indictment. (Docket No. 245.) The jury subsequently found Maye guilty on Counts 2-34 (the individual substantive offenses). (Docket No. 252.) Following the verdict, Maye timely filed a motion for judgment of acquittal or, alternatively, for a new trial, which this Court denied on April 8, 2014. (Docket No. 291.)
On November 7, 2013, the government filed its motion for entry of a preliminary order of forfeiture. (Docket No. 268.) Briefing concluded on January 6, 2014, at which time this Court took the motion under advisement without oral argument.
In support of its motion, the government filed the affidavit of Joseph Cowell, Diversion Investigator for the United States Drug Enforcement Administration. (Docket No. 268-1.) Cowell analyzed Maye's financial records from 2004-2006 (the dates charged in the conspiracy count) to develop the government's forfeiture position. He maintains that Maye diverted income from the online pharmacies for which he consulted to a Canandaigua National Bank and Trust account held in his wife's name. (Cowell Aff., ¶¶ 5, 6.) The government previously seized $52, 190.97 from that account, which it seeks to forfeit in addition to the other proceeds of Maye's crimes. (Cowell Aff., ¶ 3.) Based on tax records, Cowell concludes that Maye obtained $1, 114, 923 in gross proceeds from the three online pharmacies with which he was associated, a figure that Maye does not dispute. (Cowell Aff., ¶¶ 7-12; Declaration of Reetuparna Dutta, Docket No. 273-1, ¶ 8.)
After various adjustments to eliminate double-counting, to credit legitimate income, and to correct errors identified by defense counsel (see Dutta Decl., ¶¶ 9-11), the government seeks forfeiture of the $52, 190.97 already seized and a money judgment of $720, 720.00. (Government's Reply Memorandum, p. 5.) The government also seeks forfeiture of Maye's 2001 Porsche Carrera and his 2002 Lexus RX300, as derived from proceeds of his crimes, as well as the computers he used to run his "telemedicine consultant" business, as property used to commit or facilitate his crimes. (Cowell Aff., ¶¶ 15-19.) The government has abandoned its requests to forfeit Maye's residence and two laptop computers. (See Government's Memorandum of Law, Docket No. 268, p. 4.)
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