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United States v. Wasanyi

United States District Court, N.D. West Virginia, Martinsburg

December 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID M. WASANYI, Defendant.

          FINDINGS OF FACT. CONCLUSIONS OF LAW AND ORDER

          JOHN PRESTON BAILEY UNITED STATES DISTRICT JUDGE.

         This is a civil action brought by the United States of America seeking civil penalties for violations of the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. § 801, et seq., from defendant David M. Wasanyi.[1]

         The Controlled Substances Act provides for a civil penalty of up to $25, 000 per violation of its provisions. 21 U.S.C. § 842(c)(1). In determining the amount of civil penalties to be imposed under 21 U.S.C. § 842, courts have considered the following four factors: (1) the willfulness of the violations; (2) the defendant's profits from the violations; (3) the harm to the public; and (4) the financial capacity of the defendant to pay a penalty. United States v. Barbacoff, 416 F.Supp. 606, 610 (D.D.C. 1976); United States v. Williams, 416 F.Supp. 611, 614 (D.D.C. 1976). In accordance with the Court's conclusion that 1, 181 illegitimate prescriptions were filled, [Doc. 116 at 10], defendant is exposed to a maximum penalty of $29, 525, 000.

         By Order entered April 19, 2017, this Court granted the Government's Motion for Summary Judgment finding defendant Wasanyi liable for violating 21 U.S.C. § 842(a)(1) [Doc. 116].

         A bench hearing was held on December 12, 2018, to determine the amount of the penalty, if any, to be imposed. The Government presented the testimony of Lindsey Malocu, a diversion investigator with the Drug Enforcement Administration, and Dennis Johnson, a civil investigator contracted to the U.S. Attorney's Office. The Government also introduced a number of documents. The defendant, David Wasanyi, offered comments and introduced a number of exhibits.

         Having heard the testimony of the witnesses and having considered the exhibits presented by both parties, this Court rules as follows:

         1. On February 29, 2016, the Government filed a complaint against the above-named defendant, alleging violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-971 ("the CSA"), and seeking civil penalties for the same.

         2. Specifically, the United States alleges violations of 21 U.S.C. § 842(a)(1), 21 U.S.C. § 829, 21 C.F.R. § 1306.04, 21 C.F.R. § 1306.05 and 21 C.F.R. § 1306.11 [Id.]. The Government claims that the individual defendants utilized City Pharmacy, LLC ("CP"), and City Pharmacy of Charles Town, Inc. ("CPCT"), to fill illegitimate prescriptions for controlled substances, including those which were: (1) written by medical providers located in distant states; (2) presented by individuals who traveled from distant locations; (3) paid for using cash; (4) altered by scratching out the medical provider's fill date, increasing the number of units being prescribed or changing the strength, nature or type of controlled substance; and (5) lacking the full name or address of the patient for whom the prescription was written.

         3. During the time of the events alleged in the Complaint, David Wasanyi was a pharmacist, licensed by the West Virginia Board of Pharmacy, and was the primary pharmacist at both City Pharmacy and City Pharmacy Charles Town.

         4. From 2010 into 2015, City Pharmacy and City Pharmacy Charles Town filled 1, 181 invalid prescriptions for Schedule II and Schedule III controlled substances, written by 45 physicians located in Florida, Georgia, Tennessee and Virginia for patients in Alabama, Florida, Georgia, Kentucky, Maryland, Ohio, Tennessee and Virginia.

         5. Most of the prescriptions (957) were written for allegedly fraudulent patients who were residents of Kentucky and Ohio.

         6. Additionally, all of the purportedly fraudulent patients traveled great distances to have the prescriptions filled.

         7. The individual defendants utilized CP and CPCT, to fill illegitimate prescriptions for controlled substances, including those which were: (1) written by medical providers located in distant states; (2) presented by individuals who traveled from distant locations; (3) paid for using cash; (4) altered by scratching out the medical provider's fill date, increasing the number of units being prescribed or changing the strength, nature or type of controlled substance; and (5) lacking the full name or address of the patient for whom the prescription was written.

         8. The Government presented copies of four of the prescriptions at issue and a spreadsheet summarizing the prescriptions, which, in turn, purportedly demonstrate that the vast majority of the prescriptions were written by a provider who was not ...


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