War on Drugs

'The Government Needed a Scapegoat': 75-Year-Old Man Charged With Opioid Conspiracy Cleared

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dummy holding prescription pill bottles | DIGICOMPHOTO/SCIENCE PHOTO LIBRARY/Newscom
(DIGICOMPHOTO/SCIENCE PHOTO LIBRARY/Newscom)

A small blow against Drug Enforcement Administration (DEA) overreach. James Barclay was an accounts receivable manager for the wholesale pharmaceutical distributor Miami-Luken. The feds said doing his job made him a drug dealer worthy of criminal prosecution.

"I was indicted because the DEA failed to do their job, and the government needed a scapegoat after the publicity of the opioid problems in West Virginia," he wrote in an August 25 letter to Judge Matthew W. McFarland of the U.S. District Court for the Southern District of Ohio.

Barclay, now 75, retired from Miami-Luken in 2015. Four years later, he was charged with conspiracy to distribute a controlled substance.

The DEA and federal prosecutors said Barclay was guilty of conspiring with his employer to illegally distribute opioid pills in Indiana, Ohio, Tennessee, and West Virginia. Miami-Luken was accused of distributing oxycodone and hydrocodone pills to doctors and pharmacies "not for a legitimate medical purpose." And Barclay—whose job involved assisting with filling out compliance paperwork and responding to DEA inquiries—was charged with failing to "maintain effective controls against diversion of controlled substances" and to "report suspicious orders to the DEA." Essentially, the government said Barclay should have known some doctors were writing illegitimate prescriptions or that patients were abusing them and then acted to stop it.

But Barclay says he never had the authority to stop an order from shipping, label an order as suspicious, or report anything to the DEA. "Plus, for some half dozen times I requested guidance from the DEA on controlled drug issues, the DEA's only response was 'We can't tell you how to run your business, it's a business decision,' if they responded at all," he stated.

For years, Barclay has been fighting to clear his name—and it finally paid off. In August, the U.S. District Court for the Southern District of Ohio granted a motion to dismiss the charges against Barclay and vacate his previously entered guilty plea (made under the threat of 20 years in prison if he went to court and no prison time if he pleaded out).

The decision came after federal prosecutors moved on August 2 to "dismiss the Indictment against all remaining defendants in this case, without prejudice," under the stipulation that they agree not to bring lawsuits against the prosecutors, the DEA, or other law enforcement agencies involved in the investigation and prosecution. It's unclear what made the government give up on the charges, but turnover at the U.S. Attorney for the Southern District of Ohio's office seemed to play a role, with new U.S. Attorney Kenneth Parker rejecting charges brought by his predecessor. Judge McFarland has now dismissed the charges against all defendants (one of whom died during the case).

While this story has a happy ending, Barclay still had several years of his life stolen over a desperately overzealous attempt at drug law enforcement. "I had a mugshot taken, I was fingerprinted, I was put into a holding cell, and then I was shackled like the criminals seen on TV and escorted to the courtroom," wrote Barclay in his letter.  "This case has affected our entire family" and "taken over our lives for the last three years."

"Never in my 75 years, as an Army veteran and a law-abiding citizen, did I ever think that this could happen in our country," he added.

Barclay's story is part of a larger ploy by the DEA, federal prosecutors, and state attorneys general to hold all sorts of intermediaries responsible for people's opioid addictions. The individuals and businesses caught in this drug war deluxe scheme have wildly varying degrees of culpability. They include pharmaceutical companies, distributors, medical practices, and pharmacies. Some have been obviously guilty of malfeasance, but others are being held responsible for not anointing themselves de facto drug cops.

For instance, Walgreens was recently found liable for San Francisco's drug problems in a civil suit. It accused the pharmacy not of filling illegitimate prescriptions or otherwise illegally distributing opioid pills but of failing to divine which doctors had prescribed too liberally or which patients might abuse their prescriptions.

As Barclay's case shows, even random employees of companies involved in opioid pill distribution can fall into the DEA's crosshairs. (It's about "holding accountable anyone and everyone with criminal responsibility for the diversion of drugs," Benjamin Glassman, U.S. attorney for the Southern District of Ohio, said in 2019.)

The whole thing smacks of authorities frantically looking for folks to blame, scapegoating any entity who came near legal opioid pills in a bid to wring money, accolades, and good press out of their prosecution as the opioid crisis raged on unabated. All the while, drug war policies—like making prescription painkillers harder to get and intensifying the crackdown on people who used them—only fueled a massive market in illegal opioids, like heroin and fentanyl, that have proven more destructive and deadly.

William J. "Bill" Hughes, Barclay's lawyer, told the Cincinnati Enquirer this was a test case for prosecuting pharmaceutical drug distributors.

However, he explained that the companies like Miami-Luken have no access to patients, prescriptions or the doctors who wrote them. They only ship drugs to entities registered with the DEA and the DEA can monitor all shipments between distributors and pharmacies in real-time. …

Hughes said the DEA had issued a letter to Miami-Luken and other companies like it saying the companies were responsible not only for knowing what their customers were doing, but what their customers' customers were doing. And it had no basis in law, Hughes said.

The idea that an accounts receivable manager at a wholesale drug distributor should interfere with the relationship between doctors, patients, and pharmacies and make his own determinations about the legitimacy of prescriptions is just weird. Alas, it's the world that federal authorities seemingly want us to live in.

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