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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Norman Clement, pro-se, Petitioner./
Case: No. 21-1262
Drug Enforcement Administration, Respondent./
_________________________________________
OUT OF A MOUNTAIN OF DESPAIR COMES A STONE OF HOPE SUPPLEMENTAL MOTION FOR A REHEARING UNDER FEDERAL RULES OF APPELLATE PROCEDURE, RULE 35 (PART-3)
The Appellant moves, pro se, to submit this supplemental petition request under Rule 35 before the entire Panel for Rehearing En Banc from a May 25, 2022 decision, barring a summary reversal of Administrative Court based on United States Supreme Court ruling in Ruan-Khan vs. United States case: No- 20-1410.
STATEMENT AT ISSUE
Based on a June 27, 2022, U.S. Supreme Court Finding, the appellant moves pro se to request a reconsideration in support of vacating the revocation of his pharmacy DEA license.
FACTUAL BACKGROUND
On August 29, 2019, in the city of Tampa, Florida, Hillsborough County, Pronto Pharmacy was raided by DEA agents. Norman Clement was acting in the capacity of a licensed’s pharmacist. Whereby a Pharmacist is a person who is professionally qualified to prepare and dispense medicinal drugs. This definition is a statute within the Florida Administrative Code & Florida Administrative Register.
The officer acted upon an oath to enter the premises to secure evidence of violations of 21 U.S.C. §§ 841(a)(1) (possession with the intent to distribute and distribution of oxycodone and hydromorphone. Such action by the DEA was improper.
The DEA agents removed files with the intent of searching to discover items to suggest a criminal act occurred. This is not implied within the warrant, and the act of looking to find an illegal act is not supported by probable cause.
Such an action to search to find without stated justification for the search is an investigative function that violates the premise of a search warrant and violates the basis of Probable Cause and elements of Reasonable Suspicion. The search conducted was not specific, whereby the agents confiscated items not specific to the warrant. Removing such documents and items serves no purpose of criminal activity but only to develop a case beyond
the scope of the search. The intent is that a person and not a sold medication and criminalizing the job of a licensed Pharmacist.
THANK YOU DALE SISCO ESQ., OF TAMPA FLORIDA
Issue: The officers exercised undue discretion when they chose to search and seize. Thus, the defendant’s interest was violated when the search and seizures became “unreasonable” and not authorized by the warrant based upon probable cause to remove personal artifacts such as academic research documents. This binder contained copyrighted academic research.
The officers’ actions suggested that they did not know that a pharmacist is not just a person but a licensed individual to create, distribute, dispense, or possess control substance. The act to remove all electronic devices is an act to suspend income and eliminate the practice of filling legal prescriptions.
Rule: Opinion of Supreme Court Ruan vs United States:
“The Control Substance Act excepts, for example, licensed professionals such as dentists, veterinarians, scientific investigators, and pharmacists from the prohibition on dispensing controlled sub-stances. See 21 U. S. C. §802(21).
“In a §841 prosecution, then, once the defendant satisfies the initial burden of production by producing evidence of authorization, the burden of proving a lack of authorization shifts back to the Government. And, as with §885’s indictment-related purpose,”
§885’s burden-related purpose simply relieves the Government from having to disprove, at the outset of every Controlled Substances Act prosecution, every exception in the statutory scheme.
Section 885 thus does not provide a basis for inferring that Congress intended to do away with, or weaken, ordinary and longstanding scienter requirements. At the same time, the language of §841 (which explicitly includes a “knowingly or intentionally” provision); the crucial role au- authorization (or lack thereof ) plays in distinguishing morally blameworthy conduct from socially necessary conduct; the serious nature of the crime and its penalties; and the vague, highly general language of the regulation defining the bounds of prescribing authority all support applying nor- mal scienter principles to the “except as authorized” clause. That statutory requirement, while differing from an element in some respects, is sufficiently like an element in re-spect to the matter at issue here as to warrant similar legal treatment.”
That is to say, once a defendant meets his or her burden of production, the Government can convict “by proving beyond a reasonable doubt that [the defendant] did not even make an objectively reasonable attempt to ascertain and act within the bounds of professional medicine.”
Analysis: In Ruan Justice, Beyer rejected analogous suggestions in other criminal contexts. (see Ruan-Kahn pages 5 thru 12.)
We conclude that §841’s “knowingly or intentionally” mens
rea applies to the “except as authorized” clause. This means that in a §841 prosecution in which a defendant meets his burden of production under §885, the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner. We vacate the judgments of the Courts of Appeals below and remand the cases for further proceedings consistent with this opinion. It is so ordered.
Conclusion: The warrant issued identified Items that are evidence of violations of 21 U.S.C. §§ 841(a)(1) (possession with the intent to distribute and distribution of oxycodone and hydromorphone. The intent of this law implies that it shall be unlawful for any person knowingly or intentionally— to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
The DEA applied their reinterpretation of the law to identify licensed, Pharmacist as a person that illegally distributes, or dispenses, a controlled substance.
SUMMARY OF ARGUMENT
During the Drug Enforcement Administration Hearing on January 28, 2020, Agent Richard James Albert Jr., Diversion Investigator for the Drug Enforcement Administration, stated that he “became involved after receiving a phone call from the Department of Health about a pharmacy compounding Hydromorphone and Oxycodone.” There is a conflict in order, whereby license number 37644 affords Norman Clement the privilege of compounding Hydromorphone and Oxycodone. The agent’s statements lead to ponder does the law whereby a phone call gives an officer probable cause and the right to search on mere suspicion.
Whereby the act of compounding was legal, the initial contact shows a lack of significant knowledge. Anything based on an assumption other than this legal action fall under “The Fruit of The Poisonous Tree.”
64B16-27.700 Definition of Compounding
“Compounding” is the professional act by a pharmacist or other practitioner authorized by law, employing the science or art of any branch of the profession of pharmacy, incorporating ingredients to create a finished product for dispensing to a patient or for administration by a practitioner or the practitioner’s agent; and shall specifically include the professional act of preparing a unique finished product containing any ingredient or device defined by Sections 465.003(7) and (8), F.S.
The term also includes the preparation of nuclear pharmaceuticals and diagnostic kits incident to use of such nuclear pharmacies. The term “commercially available products,” as used in this section, means any medicinal product as defined by Sections 465.003(7) and (8), F.S., that are legally distributed in the State of Florida by a drug manufacturer or wholesaler.
(1) Compounding includes:
(a) The preparation of drugs or devices in anticipation of prescriptions based on routine, regularly observed prescribing patterns.
(b) The preparation is pursuant to a prescription of drugs or devices which are not commercially available.
(c) The preparation of commercially available products from bulk when the prescribing practitioner has prescribed the compounded product on a per prescription basis, and the patient has been made aware that the pharmacist will prepare the compounded product.
The reconstitution of commercially available products pursuant to the manufacturer’s guidelines is permissible without notice to the practitioner.
If the officers were asked the difference between compounding and manufacturing, they must know what they were being asked. A reasonable officer could not support or testify to the facts of any item or file that was within the seized computer or secondary storage systems.
PROBLEM STATEMENT
In this matter, the acts of law enforcement to initiate actions on a medical professional and describe that individual as a person redefine the legal profession as an illegal (street) drug operation. Thereby fraudulently applying their powers to enter a pharmaceutical/ medical facility to close them down. The actions of the Drug Enforcement Administration (DEA) to raid African American Pharmacies exhibit an act of racial profiling. Their activities and efforts are focused on undermining African American-owned pharmacies. Wherefore on August 29, 2019, In the city of Tampa, Florida, Pronto Pharmacy was not raided by reasonable and competent officers. Whereby the execution of Warrant 8:19MJ2143AEP implies that a person was in violation of 21 U.S.C. §§ 841(a)(1) (possession with the intent to distribute and distribution of oxycodone and hydromorphone.
The officers should have known Pronto Pharmacy is a licensed pharmaceutical medical facility whereby Class 2 narcotic analgesics are stored and sold. The officers deliberately chose to reclassify without legally redefining or understanding the difference between a license pharmaceutical facility and a street corner drug operation. By their actions, the DEA agents ignored the laws in that they identified the pharmacist as a person. This allowed them to deceive the courts to cause a signature to support their deception of probable cause that a person, not a pharmacist, was compounding and or manufacturing drugs. Items that are evidence of violations of 21 U.S.C. 841(a)( 1) (possession with the
intent to distribute and distribution of oxycodone and hydromorphone substances) and 846 (conspiracy to do the same) and 843 (fraud/deception regarding the same), including the following: Distributing, ordering, purchasing, or the loss or disposal of oxycodone and hydromorphone. These items can be found in a licensed pharmaceutical lab. On this statement, the agents fully knew and understood that these medical narcotic analgesics would be found. They further know and failed to understand the distinct difference and the lack of cognitive distinctive analytical differential association whereby they could not differentiate between a license pharmaceutical facility and an illegal non-licensed drug house. The police acted far outside of their scope of training when they wrote.
“Information to Be ! Information to Be Searched and Items to Be Seized” All capsules and powder, including capsules containing suspected controlled suspects. This warrant violates the due processes clause of the constitution; 1st, 4th, 8th, and 14th amendments. Whereby capsules and powder, including capsules containing suspected controlled substances. These items are naturally found in a licensed facility pharmacy (i.e., Pronto Pharmacy), and to list such as suspected controlled items is clear and deliberate to operate under the illusion that a crime is afoot.
Moreover, If the prescriptions were fraudulent, then how did law enforcement obtain the records of each prescription transaction?
If the documents were obtained from Pronto’s” s computer and subsequently transmitted to the PDMP (the DEA computer systems).
Via the PDMP computer system, the DEA has full knowledge of each medical Class 2 prescription that was filled. The DEA agents should have known from the ARCOS system what prescriptions were filled. Therefore, the criminalization of medical practices was a clear intent to undermine a legitimate pharmaceutical operation, and to personalize a templet to initiating a warrant and raid must be questioned. Did the DEA agents inquire if the individual has medical insurance?
Most insurance does not cover oxycodone, and a business has to right to deny taking insurance because many insurances do not pay. Based on the initial phone call, the Pronto Pharmacy was compounding when it was legal; the DEA stigmatized the disease and immediately jumped to criminalize treatment, and payment, and therefore, they called long-distance driving a Red flag. This can undoubtedly take place everywhere in America driving an automobile over a long distance to fill legitimate prescriptions place pharmacies in jeopardy.
Had the agents studied pharmacology, they would have known the chemical composition and the treatment rate of various medications. These agents should have known the multifaced functions of pharmaceutical procedures of chronic pain therapeutic plan. Therefore, what law enforcement saw from their lack of knowledge of pharmacology was the perception that a criminal act was in process.
APPLYING THE DEA ARBITRARY PRINCIPLES
The DEA has applied the arbitrary principles at Pronto’s Pharmacy in Tampa; The DEA has arbitrary applications targeting African American own pharmacies and pharmaceutical labs because they are easier targets for prosecutors and Law Enforcement. Corporate pharmacies such as CVS and Walgreen perform similar functions of all listed pharmacies. Yet they appear immune to forceable actions by the government agents of the DEA. The DEA used the Red Flag designation to justify their application of a crime.
ARBITRARY PRINCIPLES FAILED REASONING
The DEA agents failed in many aspects of reasoning to develop the scope of criminal activity. For any person or persons to violate the criminal statute, the officer must articulate the elements of a crime to establish probable cause. Whereas violating red flags of abuse or diversion is not a statutory clause of reasoning. The DEA officers have developed terminology on their own to support the colloquial argument to support probable cause. The DEA’s standard of reasoning for probable cause has become clear: “Red Flag.” The term Red Flag has no statutory meaning in the areas of pharmaceutical and or within the medical profession. Despite the levels of training and knowledge of the African American Pharmacist, the DEA continues to profile these facilities as a place of criminal activity. The DEA continues and explicitly expresses actions that prohibit officers from targeting people based on their
religion, national origin, or other characteristics. Therefore, the DEA agents have substituted the legal standing of reasonable suspicion and probable cause and applied a lesser standard of cause to single out pharmaceutical facilities to obtain their organizational objectives. The constitution protects for unwarranted government intrusions. Whereby the government DEA agents express that filled prescriptions without corresponding responsibility is the fundamental action of a pharmacist. This assumption by the DEA is fundamentally incorrect. DEA agents across the country have applied what they reason as the law or searching and seizing medical facilities. This act used by the DEA agents is too vague as it applies to “1306.04 Purpose of issue of prescription”. The DEA follows code 1306.04, which states, “the corresponding responsibility rests with the pharmacist who fills the prescription.” This policy lacks medical logic. Whereby the Florida standard of medical medicine depending is based on and practiced by licensed pharmacists. Thus, in the actions of the DEA, the agency is acting upon the citizens based on an unreasonable standard in absence of Reasonable and/or Probable Cause. The DEA has deliberately rephrased legal pharmaceutical, and medical practices and calls the medical practice a Cocktail Mix. This usage of such terminology is misleading, dangerous, cunning, and intentionally designed to increase convictions by voiding ideas of proper pharmaceutical procedures.
This terminology expressed by the DEA agents is street slang rather than medical terminology. Moreover, in their submission to the courts, the DEA consistently failed to show pharmaceutical
knowledge that filling a prescription for two different medications is not a criminal act. The DEA Agents, therefore, failed to articulate how they developed the standards of the probable cause through the interpretation of Act ‘(21 U.S.C. 829). Where within any portion of the federal and state laws can a DEA agent (s) articulate criminal violations occur?
We must ask the court to recognize that the government must not place or exercise fear within the public, and any act of reckless terror of enforcement violates the laws.
When a law enforcement agency lacks the knowledge and training, they are bound to impact the constitutional rights of the citizen they serve negatively. In this case, and many others, the American people, primarily African Americans are at risk of harm when law enforcement can apply what they think or feel to convince the judicial system that crimes are taking place.
In arbitrary reasoning, the DEA agents claim their actions are based on factors applied that “Travelling Long Distances to Fill Prescriptions can be a red flag of abuse and diversion if a patient travels the significant distance to a particular pharmacy. Currently, the DEA has no statistical guidelines to support or establish boundary levels indicative of a criminal act. The DEA guidelines are tactic acts that specifically target American Pharmacists.
SUMMARY
The actions and activities of performance displayed that the DEA agents show the inadequacy of training and contempt for the African American Pharmacy business. The DEA agents failed to understand the scientific methodologies of pharmacology adequately. Yet, they chose to enforce rules and regulations without adequate pharmacology schooling. The agents relied on mere Here Say and applied what was heard from others to act upon the African American pharmaceutical professionals. A Garrity statement is an oral or written report obtained from a public employee concerning allegations against public employees. To be dishonest to achieve law enforcement adjectives is an act of deception.
Therefore, the acts and actions of the DEA’s application fall under the “Fruit of the Poisonous Tree.” These enforcement matters are baseless, and all items removed must be immediately returned, and all losses and wages and profits must be restored. The purpose of any law enforcement agency is to protect and serve. That duty extends beyond the scope of service each law enforcement officer has. At any given moment, a law enforcement officer may be engaged in a gunfight or tenderly hold a baby.
The expansive functions of a law enforcement office extend beyond the thoughts and ideas of the general public. Despite their duty services, they must maintain the integrity and ‘all things that glitter is not gold.’ The Law enforcement officer cannot be led by greed and or temptation. Therefore, they cannot lie or deceive. Disabling and removing the camera system before DEA agents searched Pronto Pharmacy clearly shows a high level of contempt. Wherein and whenever a law enforcement officer deliberately lies, that officer(s) and command can and should be impeached of the character or testimony and charged under the U.S. law of “Giglio.”
CONCLUSION
The Appellant requests that the Court vacates the Order of Revocation of Pronto’s Pharmacy DEA registration. In the alternative, remand the case back to the trial court for adjudication under the proper evidentiary standard.
WHEREFORE, WE REQUEST UPON THIS COURT
- Grant this motion and reverse these findings and decision of the Administrative Court, return and restore all privileges of the DEA Control Registration Certificates of Pronto Pharmacy LLC.
- Further, Dismiss the Decision of the Administrative Judge Mark Dowd in agency case No: 19-42, Federal Registry filed 1927282 on December 20, 2021with extreme prejudice.
- Return all Files, Equipment, and Medication to Pronto Pharmacy Llc and its owner Norman J Clement of Tampa, Florida.
- The Court must send a clear and strong message in its final order to the deliberate misguided actions of the DEA; we, therefore, Amend the Reward damages and penalties of amounts greater than $2.857 billion U.S. dollars. I’ve lost my life savings
July 30, 2022
RESPECTFULLY SUBMITTED Norman J Clement
Norman J Clement, pro se
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 30, 2022, a true and correct copy of the foregoing was electronically filed via ECF and/or served via e-mail upon the following:
I, Norman J Clement, hereby certify that I electronically filed and agree to utilize jointly the foregoing Respondent’s Notice of Filing the Certified List of the Record with the Clerk of the Court for the
United States Court of Appeals for the District of Columbia Circuit, by using the appellate CM/ECF system, on July 30, 2022. I certify further that Petitioner is pro se, and that service will is accomplished by electronic mail to:
Anita Gay, Esq United States Department of Justice Criminal Division/ Narcotic and Dangerous Drugs Section 145 N Street, NE, Room 2E-404 Washington, D.C. 20002 (202) 353-7629 anita.gay2@usdoj.gov
Norman J Clement
Norman J Clement pro. se prontopharmacy@aol.com
LOW HANGING FRUIT
FOR NOW, YOU ARE WITHIN
THE NORMS
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