STEROIDS CASE CONVICTIONS TOSSED

Guilty pleas from two Florida "wellness clinic" operators are dismissed

BRENDAN J. LYONS
Section: Main,  Page: A1

Date: Saturday, September 1, 2012

ALBANY -- An Albany County judge who has issued stinging rulings in a steroids distribution case this week threw out the convictions of two defendants.


In a swift decision following a hearing earlier in the week, Albany County Judge Stephen W. Herrick late Thursday dismissed the 2007 guilty pleas he had accepted from two operators of a Florida "wellness clinic." Herrick dismissed the convictions after an attorney for one of the defendants argued that prosecutors had waited too long to schedule his client's sentencing.


Prosecutors said the delays were due to lengthy appeals of earlier rulings by Herrick, who has twice thrown out indictments against five other defendants at the center of the case.


Thursday's ruling affects Brian Schafler, of Cooper City, Fla., and his business partner, Greg Trotta, also of Florida. They were among 17 people who pleaded guilty in a sprawling steroids distribution investigation. The pair pleaded guilty to felony charges under a deal approved by Herrick and were expected to receive probation. They admitted funneling millions of dollars in fraudulent prescriptions, mostly for steroids, to Orlando's Signature Compounding Pharmacy, records show.


The sentencings of Schafler and Trotta, and seven other defendants, including three doctors, had been put on hold pending their cooperation in the ongoing prosecution of the pharmacy's owners and managers. Herrick, during a hearing Monday, questioned whether prosecutors should have moved to have Trotta and Schafler sentenced with their cooperation added as a condition of probation.


Michael Katzer, Schafler's attorney, who filed the motion for dismissal, argued the delays were due to prosecutorial "incompetence."


Assistant District Attorney Christopher Baynes countered that the defendants never requested to have their sentences expedited. He said sentencings may be delayed for defendants who agree to testify in a related case, and told Herrick that if it was an issue the judge could sentence them immediately.


It's the latest in a series of rulings in which Herrick, who has had a contentious relationship with prosecutors in the case, has issued damaging rulings citing prosecutorial missteps. Three months ago, District Attorney David Soares was censured for comments he made criticizing one of Herrick's rulings as a get-out-of-jail-free card for the operators of Signature's internet drug business.


In 2008, Herrick dismissed the first indictment against the pharmacy's operators and ruled prosecutors could not seek a new indictment. But the part of his decision prohibiting prosecutors from bringing a new indictment was overruled.


By the time prosecutors obtained a second indictment against the pharmacy's five operators, the operators had filed a series of federal lawsuits against police and prosecutors in New York and Florida. They alleged their civil rights were violated and their reputations defamed. The civil rights allegations were thrown out by a federal appeals court but a remaining state law claim against Soares for defamation is scheduled to go to trial next year in federal court in Florida.


Citing the federal lawsuit, Herrick dismissed the second indictment in November 2010 and ruled the district attorney's office had a conflict of interest. He said the case should be handled by a special prosecutor.


A mid-level appellate court, finding "it could establish a dangerous precedent," reversed Herrick and reinstated the indictment. The defendants have appealed to the Court of Appeals and their indictment is awaiting a ruling from the state's highest court.


Herrick's latest action elicited this statement Friday from the district attorney's office: "We respectfully disagree with the court's decision and will file another appeal. While we agree that there has been delay, as we argued, it was caused by the need to successfully reverse the lower court on two prior occasions in the Signature case."


Katzer, who filed for the dismissal, said he "strongly" disagrees with the office's statement and said the delays have been "their own fault."


"An appellate court has already noted the district attorney's office 'ineffectiveness' in this case, and has also stated that the district attorney's office 'deficient' instructions to a grand jury 'substantially undermined the integrity of the proceedings,'" Katzer said. "This criticism by the appellate court speaks for itself."


The ruling affects only Schafler and Trotta. Nine people were already sentenced in related cases, including two doctors who received prison terms.


Schafler and Trotta operated the now-closed Medxlife in Davie, Fla., and admitted working with a doctor, Gary Brandwein, to churn out prescriptions for people they said had no legitimate need for the drugs. Brandwein also pleaded guilty to felony charges and awaits sentencing.


blyons@timesunion.com - 518-454-5547 - @blyonswriter