How Orlando Birbragher Won The Case — U.S. V Birbragher
In the indictment against Orlando Birbragher, it is clear that the authorities have made a case not on evidence but purely on some administrative laws.
All defendants in this case, including Orlando Birbragher, moved the court to dismiss the indictment and other criminal charges on them by the government.
An Inspector / Investigator with the Iowa Board of Pharmacy Examiners,
On June 10, 2003, the inspector inspected Union Family and met with Bouchey, the other defendant with Orlando Birbragher about the online pharmacy business. In her deposition, the inspector was asked whether, at the time of her investigation, she notified Bouchey or Union Family of any wrongdoing.
The relevant portion of the inspector’s deposition testimony boils down to her stating
She did not have concerns related to shutting down the Internet pharmacy and that she lacked authority to inform Orlando Birbragher or Huzl he had to discontinue the Internet pharmacy because there were no regulations concerning Internet pharmacies at the time she investigated Union Family.
Orlando Birbragher with other defendants argues the Indictment is unconstitutionally vague; they argue they did not have adequate notice their alleged activities were illegal.
Specifically, the moving defendants, Orlando Birbragher, and others contend the key phrases “without a legitimate medical purpose” and “outside the usual course of professional practice” are not contained in the charged criminal statutes and not defined in the corresponding administrative regulations.
Orlando Birbragher claims any conviction for the charged conduct would violate the Due Process Clause of the Fifth Amendment to the United States Constitution.
When Orlando Birbragher and the other accused defendants started their online pharmacy operations under Pharmacom in August and September 2003, the time of the alleged offenses, there was great uncertainty as to the legality of online pharmacies.
No federal statute or administrative regulation directly addressed online pharmacies. Thus, in the instant prosecution, the government relies upon the undefined concepts of “legitimate medical purpose” and “outside the usual course of professional practice” to prosecute Orlando Birbragher and the other defendants.
This is what Orlando Birbragher and other defendants have taken into account and argues that since the laws were not clear, the economic activities done can not be termed illegal or criminal.
The terms “without a legitimate medical purpose” and “outside the usual course of professional practice” are not defined in the [CSA] — indeed, the terms are not included anywhere in the statutes that Orlando Birbragher or the other defendant is alleged to have violated.
The indictment instead relies upon administrative regulations, specifically for a prescription to be effective, the prescription “must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice”. However, Orlando Birbragher’s lawyer argues that the administrative regulations fail to define “legitimate medical purpose” or “outside the usual course of professional practice.”
Orlando Birbragher as well as others could not conform to the conduct to satisfy the laws of online pharmacies, because “ no one knew what the law was.”
Orlando Birbragher opines that the government is not pursuing charges against any other pharmacists — thereby proving that the government’s interpretation of the CSA leads to arbitrary enforcement. To learn more about Mr. Orlando Birbragher, you may refer to the following link: orlandobirbragher.com
