Free Sentencing Memorandum - District Court of Arizona - Arizona

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METCALF & METCALF, P.C.
Attorneys at Law 51 West Second Street Yuma, Arizona 85364 (928) 782-2558 [email protected] James F. Metcalf Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) v. ) ) ) Adalberto Robles, ) Defendant. ) ____________________________________) UNITED STATES OF AMERICA, FILE NO. CR02-0993-008-PHX-FJM SENTENCING MEMORANDUM

Defendant, through undersigned counsel, respectfully requests, pursuant to 18 U.S.C. 3553(a) that this Court consider the attached evidence as it relates to the history and characteristics of the defendant. Defendant's conduct in this case was completely aberrant in the context of his entire life. The internet drug operation involving the co-defendants from the original indictment was well underway before Dr. Robles was ever solicited to participate. He was running his successful pharmacy and medical practice in Los Algodones, Mexico with absolutely no interest in matters related to internet prescriptions. Algodones, Mexico is a small border town across from the California border but only a fifteen minute drive from Yuma, Arizona. The primary attractions in Algodones are the numerous pharmacies and medical practices, one of which is owned by Dr. Robles. Many U.S. citizens and persons of other nationalities such as Canadians travel to Algodones each day to receive medical treatments and to buy prescription drugs. The cross-border movement at the Algodones Port of Entry, particularly in the winter months, is on a massive scale. Individuals involved

Case 2:02-cr-00993-FJM

Document 147

Filed 10/14/2005

Page 1 of 4

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with Cymedic and Kwikmed apparently were familiar with Algodones, Mexico because a representative of the companies, Kieth Salvato approached Dr. Robles in Mexico and asked him to participate in their internet business. Specifically, he was asked to endorse certain non-prescription wellness products which would be marketed over the internet. One such product was a silver cloth which purportedly had some health benefit. It should be noted that during the time-period of the early months of the investigation and indictment, these companies still maintained internet web pages with links to affiliated non-prescription health products. Kieth Salvato is an individual who has been described by close personal friends as a someone who was always looking for a "fast buck" and a "smooth operator". Counsel for defendant Robles conducted an extensive interview with an individual who knew Mr. Salvato from high school days up to the present time and it was his opinion that Mr. Salvato had certainly misled Dr. Robles because it was consistent with Mr. Salvato's history and standard operating procedure. This witness was also aware of some of the facts of the instance case through his relationship with Mr. Salvato. Nevertheless, Dr. Robles was suspicious of the deal which sounded too good to be true and initially turned down the offer. Unfortunately, Dr. Robles eventually agreed to accept the offer but he never agreed to participate in the prescription drug sales. His desire to make a substantial sum of money for very little effort overcame his judgement and he compounded the problem by willfully failing to pay taxes on the income. However, the pre-sentence report creates an impression of Dr. Robles' involvement that is simply not supported by the evidence and more importantly is inaccurate. Page five, paragraph 13 states that only Dr. Clemens and Dr. Robles could prescribe medication. After extensive review of disclosure to include days of sifting through boxes of paperwork from the named corporation, not a single prescription with Dr. Robles' signature was identified. Dr. Robles never signed a single prescription as part of this operation. There was no contract signed by him agreeing to such activity, nor does the government currently maintain that such evidence exists. A variation of his full name was placed on the prescriptions after Dr. Clemens was sanctioned and unable to write prescriptions. No doubt, in a panic to keep the multi-million dollar operation going, Kieth Salvato, ever the "make it happen" operator reached out to Dr. Robles in Mexico and began placing a variation of his name on the prescriptions. Dr. Robles has never prescribed medicine in the U.S. Furthermore, Dr. Robles suspects that some of the money alleged to have been paid to him by the companies was "skimmed"by Salvato, as Kieth Salvato was the go-between the companies and Dr. Robles. 2 Case 2:02-cr-00993-FJM Document 147 Filed 10/14/2005 Page 2 of 4

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Otherwise, one must wonder why the other defendants would bother with the entire Dr. Robles aspect of the case when they did not use his real name and never had him sign any prescriptions, yet they were prepared to pay him thousands of dollars. Clearly, there was some type of deception occurring internal to the operation itself. Again, Page 8, paragraph 31 of the pre-sentence report indicates Dr. Robles should receive a two level increase in the applicable guideline offense level because "Robles knew his income was from criminal activity as he was hired to sign off as an approving physician on completed customer applications for prescriptions." Emphasis added. Dr. Robles did not believe that he was hired to write prescriptions and he wrote no prescriptions. Dr. Clemens received $900,000 for his participation in signing prescriptions, yet Dr. Robles received a fraction of that amount for a similar period. There is no evidence to support the assertion that Dr. Robles was hired to write illegal prescriptions and he did not plead guilty to that conduct. Therefore, the corresponding two level enhancement recommended by probation is inapplicable in this case. Finally, Dr. Robles cooperated fully throughout the course of the case as is accurately reflected in the Government's motion for downward departure. Additionally, Dr. Robles has paid $74,651.43 in taxes owed. See attached receipts. That is only $9,714.66 less than the highest calculated total by the criminal investigations unit of the Internal Revenue Service. The additional $9,714.66 represents interest on the total running from the date the defendant met with agents of the IRS to disclose his tax offense in October 2003, up to the current time. The defendant was willing to pay his outstanding tax debt at the time of the October meeting but was informed he must await an official calculation. Attempts were made in the intervening time to obtain the calculation but it was not made available until recently. Apparently, the civil division of the IRS will not make a final official calculation until after the criminal case is concluded. Nevertheless, Dr. Robles wants to pay the appropriate amount as soon as possible and is prepared to pay any additional amounts required. Defendant respectfully requests that the Court consider these matters in deciding the appropriate sentence. Respectfully submitted this 14th day of October, 2005. METCALF & METCALF, P.C. Attorneys at Law /s/James F. Metcalf JAMES F. METCALF Attorney for Defendant

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CERTIFICATE OF SERVICE
I hereby certify that on October 14, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a notice of Electronic Filing to the following CM/ECF registrants:

Peter Sexton Assistant U.S. Attorney's Office Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004 Shawn Shear U.S. Probation Officer 401 West Washington Street, SPC 7 Suite 160 Phoenix, AZ 85003-2119 by: /s/James F. Metcalf

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