By George Anastasia
Call it the blow job conspiracy.
And, depending on your point of view, consider it one of the high points or low points of the ongoing pill mill trial of Dr. William O'Brien 3d.
O'Brien, who is representing himself, clashed repeatedly today with Joshua Gill, an investigator with the Department of Health and Human Services, as a federal court jury watched and listened to a cross-examination that was in turns nasty, bizarre, sarcastic and petty. And, at times, effective.
Gill, a veteran investigator with a Clint Eastwood demeanor, will be back on the stand when the trial resumes on Friday. Working for the Office of the Inspector General he is part of the federal task force that built the case against O'Brien.
"Do you guys get a book on the bullshit that you say?" O'Brien asked after nearly two hours of verbal sparring with the bearded agent.
Gill, whose facial expression seldom changed, didn't have to answer that question because an objection by the prosecution was sustained by the judge. But the witness and the doctor immediately got into a heated debate over O'Brien's admitted attempt to trade a higher dosage prescription of Xanax for oral sex.
The "patient," however, was an undercover FBI agent who was secretly taping the office visit in which the doctor suggested "blues (the higher dosage pill) for a blow." What O'Brien wanted to know from Gill today was where that solicitation fit in the 140-count indictment against him.
It was, the agent said, part of the conspiracy charge at the top of the indictment.
O'Brien, who has done fairly well as his own attorney, displayed a lack of legal acumen in the discussion that followed. Arguing that a conspiracy required two participants, he asked if the undercover FBI agent was the second participant in the blow job conspiracy. The jury has already seen the videotape in which the female agent turned down his offer.
Gill calmly explained that the conspiracy to illegally distribute prescription drugs was based on an investigation that focused on O'Brien and his office manager, Angela Rongione. She has pleaded guilty and is expected to testify for the government later in the trial. Once they agreed to the conspiracy, he said, acts by either of them could be used to support the charge.
The legal lesson was one of several delivered from the witness stand today by the federal agent who often spoke in a monotone and confined his responses to a single word or a short sentence.
"I have no idea what you're talking about," Gill said in response to one rambling question.
"I don't understand what you're asking me," he said to another.
O'Brien, on the other hand, was emotional and, with a look to the jury, said he was literally "fighting for my life."
A good defense attorney knows that sometimes the questions are more important than the answers during cross-examination and O'Brien, to his credit, has quickly pick up on that technique.
A doctor of osteopathic medicine, the 53-year-old is charged with setting up a pill mill operation in conjunction with members of the Pagans outlaw motorcycle club. Authorities allege that O'Brien routinely wrote prescriptions for "patients" who were part of the scheme. They would then sell the pills on the street and kick up part of the income to members of the motorcycle gang. Some gang members and associates were also patients of the doctor.
Authorities contend that O'Brien, over a two-year period, pocketed $1.8 million by charging a "co-pay" of $200 for each visit. Some Pagans were generating $10,000-a-week selling the oxycodone, methadone, Percocet and Xanax prescribed by O'Brien, authorities say.
O'Brien's defense, built in large part around the questions he has asked, is that he was treating patients for pain management and that he routinely prescribed drugs to deal with their problems.
"If a doctor prescribes medication and a patient is selling it, is a doctor responsible?" O'Brien asked.
"How do you make sure a patient isn't selling medication?" he inquired.
"If they were selling half of it, how was I to know?" he asked.
Most of the questions were met with objections that were sustained by the judge, but the point was to put the issue in front of the jury. And O'Brien accomplished that.
To another question about what a doctor should do and how much he is responsible for, Gill said, "It depends."
"Do you think doctors should be cops?" O'Brien countered. "Do you think cops should be doctors?"
That second question focused on another theme that O'Brien came back to again and again with Gill on the stand. He challenged the agent on medical issues and drug dosages, implying that he, as a doctor, was in a better position to determine a patient's needs.
"What gives you the chutzpah to go to a grand jury" and make medical assessments, O'Brien said in one of his many question/speeches while Gill was on the stand.
He also accused Gill of perjury, claiming the agent had failed to tell the grand jury that Rongione had been fired. When Gill identified her to the grand jury as O'Brien's office manager, O'Brien, his voice rising, claimed it was proof that Gill had lied.
In fact, the agent said, Rongione had been office manager for nearly two years, a period that covered the bulk of the time that made up the conspiracy. That was the focus on the grand jury investigation. The fact that she was fired about two months before the investigation ended was immaterial. Still, O'Brien pressed on, coming back to the "lie" several times.
Gill showed little emotion, rolling with the verbal jabs and returning whenever possible to the prosecution's key point in the case -- O'Brien knew that prescriptions he wrote were going to be used by the Pagans and their associates to obtain pills that would be sold illegally, and for big profits, on the street.
The investigation, Gill said, showed that the Pagans were bringing patients to O'Brien and that those patients were selling their pills and kicking back to members of the motorcycle gang.
"You were aware of it," Gill said.
Rongione and several men identified as associates of the Pagans are expected to testify later in the trial along with at least three gentleman's club dancers who have told authorities that they exchanged sex for scripts in O'Brien's office. In all, 10 co-defendants have pleaded guilty.
"Do you really think it's legal to give a prescription for a blow job?" Gill asked at the end of today's session, adding "You've received blow jobs from other patients."
The agent and the doctor then got into a heated exchange with Gill telling O'Brien that while he might not like the answer Gill gave to a question, asking the same question in another way didn't change the facts or his response.
"I didn't offer a blow job for anything," Gill said.
"I wouldn't take a blow job from you," O'Brien replied.
With that bizarre exchange, Judge Nitza Quinones adjourned court for the day.
Gill and O'Brien will be back at it Friday morning.
Several co-defendants and the dancers who, prosecutors say, traded oral sex for scripts are expected to take the stand next week which may mean the jury has not heard the last of the blow job conspiracy portion of the case.
George Anastasia can be reached at George@bigtrial.net.