Joseph Ecker - Government Position on Sentencing

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Case 1:10-cr-00158-LMB Document 39

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA v. JOSEPH GEORGE ECKER, a.k.a. Joe Ecker, Tom Ellis, James Nelson, Joseph G. Ecker, Larry James Floyd, Joseph George Wechsler, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal No. 1:10-cr-158 The Honorable Leonie M. Brinkema Sentencing: August 27, 2010

POSITION OF THE UNITED STATES WITH RESPECT TO SENTENCING The United States of America, by and through its attorneys, Neil H. MacBride, United States Attorney, Paul M. Rosen, Special Assistant United States Attorney, and Gene Rossi, Assistant United States Attorney, in accord with 18 U.S.C. 3553(a) and the United States Sentencing Guidelines Manual, files this Position of the United States With Respect to Sentencing. The United States respectfully submits that a within Guideline range sentence of 188-235 months, as properly calculated in the Presentence Report (PSR), is reasonable, appropriate, and necessary to satisfy the factors set forth in 18 U.S.C. 3553(a). Background The Guilty Plea & Conviction On May 6, 2010, a Federal Grand Jury returned a five-count indictment against the Defendant JOSEPH GEORGE ECKER (hereinafter, Mr. Ecker or the Defendant), for conspiracy to distribute Schedule II controlled substances in violation of 21 U.S.C. 841 & 846, distribution of Schedule II controlled substances, in violation of 21 U.S.C. 841, and for

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health care fraud, in violation of 18 U.S.C. 1347. The Indictment also contained a forfeiture notice for all of the Defendants assets used to facilitate his drug trafficking activities, including his residence in Middleburg, Virginia (hereinafter, the Residence), wherein he conducted numerous drug trafficking transactions. On June 16, 2010, the Defendant pleaded guilty to Counts One and Five of the Indictment charging the Defendant with conspiracy to distribute Methadone, oxymorphone, and hydromorphone, all Schedule II controlled substances, and Health Care Fraud, in violation of 21 U.S.C. 841 & 846, and 18 U.S.C. 1347, respectively. In exchange for his plea of guilty, the United States moved to dismiss Counts Two, Three, and Four. The maximum penalty for Count One is a term of imprisonment of twenty years, a fine of $1,000,000, a $100.00 special assessment, and at least three years of supervised release. The maximum penalty for Count Five is a term of imprisonment of ten years, a fine of $250,000, a $100 special assessment, and a term of supervised release of up to 3 years. The Manner and Means of the Conspiracy As the Court knows, this case arises out of a conspiracy with the Defendant as the chief supplier to distribute large amounts of prescription narcotics that the Defendant obtained at little or no cost because Medicare paid his medical bills and prescription drug costs ever since the Defendant successfully petitioned to be declared disabled in 2006. Unlike more traditional drug trafficking conspiracies where distributors often must outlay or front large amounts of cash to obtain the narcotics in the first instance, the Defendant was able to use taxpayer dollars through Medicare and Social Security disability payments to pay for his upfront costs. Thus, the Defendants profits from these illegal sales were nearly 100 percent. From January 2007 through April 2010, Medicare paid $249,701 for prescription drugs received by the Defendant.

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Over 80 percent of that amount or $201,465 covered the cost of narcotic pain medications that the Defendant received. (Statement of Facts 14; Lenhart Aff. 13.) 1 During the course of this conspiracy, which began in or about mid-2006 and continued through in or about March, 2010, the Defendant was actively involved in the distribution of Methadone, oxymorphone, hydromorphoone in an amount that is equivalent to at least 3,000 kilograms but less than 10,000 kilograms of marijuana. (Statement of Facts 15.) This amount includes three controlled purchases from the Defendant wherein approximately 2,040 Schedule II controlled prescription narcotics were purchased from the Defendant for approximately $18,000 of pre-identified United States Government funds. (Id. 6.) As part of this conspiracy, the Defendant obtained a prescription of Opana, a brand name for oxymorphone, from his doctor, and adjusted the quantities of that prescription, for the sole purpose of reselling it to co-conspirator Robert Andrew Berger based on Bergers indication that there was a street demand for Opana. (Id. 8.) 2 At one point, the Defendant asked Berger whether there was anyone else who could re-sell certain prescriptions, because, if there was not, the Defendant was going to change his prescription amount to reflect what Berger could actually re-sell. (Id. 9.) The Defendant also took steps to elude detection of his illegal activities by removing the labels on the prescription pill bottles that included his name. (Id. 7.) Most of the drug transactions by the Defendant took place in his Residence; some took place in the Defendants vehicle. (Id. 7.) The Defendant, however, often left his Residence to further the conspiracy by, for example, driving to co-conspirator Bergers residence and leaving a note on Bergers vehicle, asking Berger whether he would like to purchase narcotics directly from the Defendant. (Id. 4.) The same day that the Defendant made that written contact with1 2

All Affidavits and Exhibits referred to herein are attached and filed with this Position Paper. On August 17, 2010, co-conspirator Robert Andrew Berger pleaded guilty to participating in a conspiracy with the Defendant to illegally distribute prescription narcotics that he obtained from the Defendant.

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Berger, Berger contacted the Defendant and purchased from the Defendant prescription narcotics. (Id.) Since about November, 2008, the Defendant has received monthly Electronic Benefit Transfer (EBT) funds (formerly known as food stamps) in the amount of approximately $360 per month, totaling about $6,731. In his application for such benefits, during the time period of the conspiracy, the Defendant reported only his Social Security benefits of $1,524 per month as his income. (Lenhart Aff. 16.) During the conspiracy, the Defendant obtained much or all of his expensive wine from Addy Bassins MacCarthur Beverages, in Northwest Washington, D.C. Records obtained from the business show that the Defendant had purchased more than $20,000 of wine from the store. The Defendants most recent purchase was on January 12, 2010, when the Defendant went to the store and paid $5,600 in cash on a $6,600 order for 87 bottles of wine. (Id. 24.) Defendants Medical Condition According to the PSR, the Defendant purports to suffer from degenerative peripheral neuropathy, a condition that allegedly causes the Defendant pain. From 2003 to 2010, the Defendant had been under the medical care of Dr. Norman Mauroner, Jr., in Warrenton, Virginia. (PSR 86.) Upon the Defendants admittance to the Alexandria Adult Detention Center (ADC) and subsequent medical examination, doctors became so alarmed at the level of prescription drugs and narcotics that Dr. Mauroner prescribed to the Defendant that they reported Dr. Mauroner to the Virginia Board of Medicine, as required by the mandatory reporting laws of the state. (Id.; Sharieff Aff. 9.) The medical professionals at the ADC were of the clinical opinion as a physician that if Mr. Ecker was given the medications as prescribed, there was a high probability that he would not survive. (Sharieff Aff. 6; PSR 86.)

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On April 7, 2010, the day that the Defendant was arrested, law enforcement made contact with the Defendant at his Residence by initially identifying themselves as potential homebuyers. Before the Defendant knew that the would-be home buyers were law enforcement, FBI Special Agent Lenhart observed the Defendant walk down four steps to unlevel, unpaved ground and walk approximately twenty feet on the unlevel, unpaved ground. The Defendant did this without the aid of a cane, walker, or wheelchair, all the while holding a cup of coffee in one hand and a newspaper in the other. (Lenhart Aff. 7.) On April 9, 2010, law enforcement interviewed employees of the Middleburg Bank, located in Middleburg Virginia (hereinafter, the Bank), where the Defendant held accounts and two safe deposit boxes. As discussed below, among other items, the Defendant maintained a 65pound silver bar, 49 prescription bill bottles full of Schedule II controlled substances, coins and jewelry in these boxes. Despite the weight of the safe deposit boxes due to their precious metal and other contents, the Defendant neither requested nor allowed assistance from Bank employees in recovering the safe deposit boxes. The Defendant also never entered the Bank with a walker or a wheelchair, and he walked normally, though slightly stooped. (Id. 12.) On April 8, 9, and 14, 2010, at the Defendants initial appearance, detention hearing, and preliminary hearing, he repeatedly appeared in court in a wheel chair or assisted walking device. (Lenhart Aff. 12.) Obstruction of Justice During the April 7, 2010 search of the Defendants Residence, Mr. Ecker was shown what experienced FBI agents perceived to be safe deposit box keys. The Defendant and his wife were both asked if the keys belonged to safe deposit boxes that they held at any bank. Both

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denied possessing a