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A New York dermatologist convicted of conspiracy to illegally distribute painkillers that caused the death of one patient through an overdose has had one of his convictions reversed by a divided appeals court. The 2d U.S. Court of Appeals overturned the conviction of David E. Wexler, with two of three judges finding no evidence that the pain medications he distributed to the deceased, Barry Abler, were part of a broader drug distribution conspiracy. Wexler’s 20-year mandatory minimum sentence for the conspiracy conviction was also thrown out, leaving open the possibility he could serve a shorter prison term upon resentencing. U.S. v. Wexler, No. 06-1571-cr. Judge Reena Raggi dissented from the majority’s holding on the conspiracy conviction, basing her opinion on the buyer-seller rule, that a straight sale of drugs without resale cannot support a conspiracy charge. The three panelists agreed to uphold Wexler’s convictions on a host of health care fraud and illegal distribution counts. Wexler was convicted following a 2006 trial in which the evidence showed that he submitted hundreds of thousands of dollars in false and inflated bills to insurance companies and fed addicted patients an endless stream of pills. It was shown at trial that his patient Abler resold some of the prescriptions, but not for the painkillers Dilaudid and Soma, of which he consumed a fatal overdose on May 28, 2001. On appeal, Wexler made a number of challenges, including a claim that the evidence to convict him of conspiracy was insufficient. “There is no evidence that the Dilaudid received by Abler from Wexler’s prescriptions was redistributed or that there was ever any agreement or intention on the parts of Wexler and Abler to do so,” Judge Roger Miner wrote. “Indeed, the quantities of Dilaudid that Abler received over the time periods that he received them were consistent with personal use.” Miner continued, “An agreement that one member of a conspiracy supply another with a drug � here by way of writing prescriptions � does not comprise an agreement to distribute that drug.” He said the other conspiracies proven at trial � to commit health care fraud and distribute other drugs � “do not establish, and cannot take the place of, an agreement between Wexler and Abler to redistribute the Dilaudid.” The trial judge had denied Wexler’s motions for relief from the conspiracy charge, saying the “limited buyer-seller rule does not apply” to the facts in the case, a “multi-year, multi-member conspiracy to distribute substantial, non-personal use quantities of a variety of drugs.” But the indictment, Miner said, “specifically alleges that the part and object of the conspiracy resulting in death was one to distribute Dilaudid, not ‘a variety of drugs.’ In light of this wording, the district court’s broad brush approach was inappropriate, as the only evidence that could bring Abler and Wexler out of the realm of buyer and seller with respect to Dilaudid was evidence suggesting an intent to redistribute Dilaudid itself.” The dissent Raggi wrote that the majority had engaged in “an unwarranted extension of the buyer-seller rule,” which precludes a jury from inferring a conspiracy from evidence showing nothing more than an arms-length drug sale. “Where a conspiracy has been otherwise proved, however, the rule does not authorize us to carve out of the jointly undertaken scheme drug transfers from one confederate to another because of a lack of proof of intent to redistribute,” Raggi said. “Such a reading is without support in our precedent,” and even if the “rule reached that far, I am not convinced that the evidence was insufficient as a matter of law,” she said.

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