Prosecutors violated the constitutional rights of a weight-loss pill wholesale distributor by charging the company with illegally selling drugs without specifying what state law was violated, the Supreme Court of Ohio ruled today.

In a unanimous decision, the Supreme Court affirmed the Cuyahoga County Common Pleas Court decision to dismiss drug trafficking charges against Martek Pharmacal Company, its president, and two employees. However, the Supreme Court did give prosecutors the option to recharge the company with a crime.

Justice Sharon L. Kennedy explained in the Court’s decision that distributors of prescription drugs can be charged with drug trafficking offenses if they are in violation of the provisions of R.C. Chapter 4729. The indictment against Martek alleged only that the company’s conduct was “not in accordance with Chapter 4729” without specifying any of the dozen of sections in the chapter.

“Here, the state’s citation to a chapter of the Revised Code failed to provide appellants with notice of the nature and causes of the charges against them as required by the Due Process Clauses of the Ohio and United States Constitutions,” the opinion stated.

Excessive Pill Sales Alleged
The Cuyahoga County Prosecutor’s Office charged Martek, its owner Andrew Martek, and employees Jon and Nicholas Troisi with seven drug-trafficking crimes. The charges centered on the weight-loss pills sold in bulk to Cleveland area doctors from 2014 to 2017. R.C. 2925.03(A)(1) prohibits any person from knowingly selling or offering to sell a controlled substance. But  R.C. 2925.03(B)(1) exempts from drug trafficking charges “[m]anufacturers, licensed health professionals authorized to prescribe drugs, pharmacists, owners of pharmacies, and other persons whose conduct is in accordance with Chapter[] 4729 [and certain other chapters] of the Revised Code.”  The prosecution alleged that the defendants were not exempt from drug trafficking charges because they acted “not in accordance with Chapter 4729.”

After the indictment did not specify which section of Chapter R.C. 4729 was violated, the company requested a “bill of particulars” from the prosecutors, seeking clarification. The bill of particulars restated the broad language of the indictment. In March 2020, the company asked the common pleas court to dismiss the case.

At a hearing , the prosecutors explained to the trial court that they would provide more specifics about the charges as the case moved to the trial phase. Prosecutors referred to a provision of the law saying a prescriber may not sell more than 2,500 weight-loss pills a month, further alleging Martek was providing up to 30,000 pills per month to five doctors who were under investigation for overprescribing the drugs.

The provision the prosecutors cited, R.C. 4729.291(C)(1)(a), pertains to prescribers but does not address how many pills wholesale distributors can sell to customers. At a subsequent hearing, the prosecutors presented other sections of the chapter that Martek violated. The company countered that the provisions cited by the state did not pertain to wholesalers or were not in effect until after the time of the alleged illegal sales.

The trial court noted that it gave prosecutors ample time to supplement their case with specific provisions, and their failure to do so violated Martek’s due process rights. The trial court dismissed the case with prejudice, which prevented the state from prosecuting the company on those charges in the future.

The prosecutor’s office appealed the dismissal to the Eighth District Court of Appeals. In a split decision, the appellate court reversed the trial court decision, finding that charges were sufficiently explained for the early stage of the process, and that the case should proceed. Martek appealed the Eighth District’s decision to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Drug Trafficking Laws
For drug wholesalers, compliance with R.C. Chapter 4729 defines “the line between legally engaging in business and regularly committing felonies,” Justice Kennedy explained.

The Court stated it had to determine whether Martek received adequate notice of “why” it was allegedly out of compliance with R.C. Chapter 4729, which led to the drug trafficking charges.

The opinion noted that under the due process clauses of the state and federal constitutions, those accused of a felony are entitled to an indictment that states “the nature and cause of the accusation.” One of the purposes of that phrase is to enable the accused to adequately prepare to defend against the charges in court, the Court explained.

Under state criminal procedure rules, the indictment must state the elements of the offense that are being charged. The state can meet that requirement by simply referencing a statute number without getting more specific about the elements of the crime, the Court has ruled.

The Court noted that prosecutors in this case, even when requested to provide more detail, failed to meet even the “minimal standard” by providing the company with information about what specific statutes within R.C. Chapter 4729 were violated.

“The lack of specificity in the indictment and in the bill of particulars allowed the state to continue to explore new theories of potential violations once others had not panned out,” the opinion stated.

Without indicating a statute that Martek allegedly violated at the time of the sales, the state failed to notify the company as to how it was out of compliance with the law, the Court ruled. The lack of information meant the indictment lacked the “nature and cause of the accusation” required by the constitutions, the opinion concluded.

While the Court agreed the charges as presented were properly dismissed, the Court disagreed with the trial court decision to dismiss them with prejudice. The opinion stated that the company’s constitutional rights would not be violated if the state sought to indict the company again.

2021-1182. State v. Troisi, Slip Opinion No. 2022-Ohio-3582.

View oral argument video of this case.

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