A miscarriage of justice occurs when a grossly unfair outcome occurs in a criminal or civil proceeding, such as the conviction and imprisonment of a person for a crime they did not commit. Miscarriages are also known as wrongful convictions.

Broward 17th Circuit Case # 12-012991-CF-10A

Appellate # 4D14-2420

To Whom it May Concern:

I am in prison in Desoto County, Florida at a minimum security work camp. I am seeking help with my case which is currently under post-conviction appeals. If you have any different or useful ideas, I would appreciate your thoughts and/or comments.

My case was severed from a larger pain clinic case with multiple defendants. The general feeling at this point is the Florida Attorney General’s Office used my case and others like it for political gain more than anything. There is no evidence that any of the doctors charged in this case meant to do anything wrong or illegal, and ill intent, as I understand it, is a requisite portion of the charges under 893.05 and 893.135, the Florida Drug Trafficking Statutes. Most of the doctors in this case were charged with both Drug Trafficking and Racketeering which seems like quite a stretch, yet I did manage to lose at a jury trial.

In the instances where healthy undercover police officers were able to obtain prescription opiates, the agents were uniformly deceptive, lying on sworn affidavits, presenting fraudulent Florida Driver’s Licenses, and reporting medical events that had never happened, through both written and spoken words. Many people have wondered why entrapment was not used as a defense and I do not fully understand the reasons for that.

As far as where to go next with this case, I believe that the evidentiary issues are probably the most incredible part of the judicial process to date, in concert with shoddy attorney performances at multiple levels. As to the evidentiary issues:

1. During the undercover visits, I dismissed one agent named Metzler/Cross (the convention from this point forward will be the “undercover” name/agent or “real” name) not knowing, of course, that he was anything but a prospective patient. His overall story seemed suspicious. I’m sure I wrote down the reasons why the story seemed suspicious in his medical records. Nonetheless, when it came time to analyze the evidence, his medical record had vanished, even though we know it was present at the time the B.S.O. and D.E.A. closed the office. After the arrest warrant was served I think everyone (except of the DEA case agent) agrees that Metzler’s chart was seized, only later to disappear from the Attorney General’s custody. During the trial, the State claimed that the only reason Metzler was dismissed and did not receive a prescription was because he argued with me, while I’m certain my reasons were multiple and well chronicled in the now missing chart. Further, the State argues that Metzler would have had no chart since he received no prescription; defense that presented at least six medical records that were present in the office after being denied prescription medicines, for various reasons. The State’s medical expert, Ruben Hoch M.D., also testified that he had examined the now missing chart of agent Metzler many months after he was dismissed. Everyone except the DEA case agent agrees that the chart left the office and was in evidence after the day of the arrest and closure of the office. Clearly a case could be made for prosecutorial misconduct and Brady Violation but Judge Jeffrey Levenson refused our motions on that issue.

2. Another undercover officer (Rix/Schwartz) came in to the clinic more than a year after Metzler, again posing as a back pain patient. Rix was , like most of the new patients, asked by office staff to obtain an MRI of his spine prior to his initial visit. The MRI revealed indisputable disc abnormalities in the lumbar spine. Upon questioning, and under oath, Schwartz admitted to a ten year history of back pain for which he had visited the chiropractor many times. We believe that the disc abnormalities were discovered as a result of this investigation a were previously not known to agent Schwartz.

Rix/Schwartz represents a true travesty as to evidentiary logic. When one considers that Schwartz was in fact a true-to-life chronic pain patient with corresponding abnormalities in his back anatomy, then it becomes necessary for the Attorney General to admit that rather than purposely misdiagnosing the agent/patient, what I in fact accomplished, was to correctly or more completely diagnose a patient who had suffered for years, undiagnosed. I am the practitioner that discovered the disc problems. My diagnosis and treatment were absolutely appropriate.

Again, however, the Court failed us. As to Schwartz, Judge Levenson said that the chiropractic visits could not be told to the jury, even though his personal health history in this case, correlated directly with the faux history! This was a very significant part of the State’s evidence and Rix also collected videos of the clinic during 2011 when I was living in Buffalo, New York, and had left the clinic to pursue Pediatric Anesthesia. Admissibility of the videos is clearly questionable based on my have previously left, as well as the suitability of Schwartz, playing a faux patient which he actually was in real life.

3. The testimony of State’s medical expert, Dr. Ruben Hoch, provides additional examples of evidentiary nonsense. Hoch, a little known anesthesiologist with a modest practice, testified that while he normally earns about $150/hour, the DEA and Florida’s Attorney General secured his testimony at $550/hour. Basically, Hoch said that I violated community standards on every single patient and that there was no valid doctor patient relationship despite:

a. Drug testing on every patient, including all 5 undercover agents.

b. Complete history and physical examination on the first visits and focused exams thereafter. Some degree of hands on examination occurred at every single visit, including those of the undercover agents.

c. MRI that correlated with the pain complaint – every one was abnormal in at least two areas.

d. Florida Driver’s License

e. Age >25 years old except when pathology was indisputable.

In his testimony, for $550/hour, Dr. Hoch testified that I had repeatedly violated community medical standards and that most patients should have been given expensive pain procedures even though none of the undercover agents reported or discussed having health insurance. In addition, medical literature indicated that the efficacy of neuraxial pain procedures is less than 10% when the pain has been present for more than 18 months. As to the drug doses, Russell Portenoy is a widely published and respected pain expert who has documented great success with chronic opiate doses higher than what I have ever used and certainly much higher than nay patient or agent discussed in this case

Dr. Hoch never came right out and said he thought I was committing a crime or even acting in bad faith and several times he openly admitted that the prescriptions were legal. Hoch also does not explain the complete lack of adverse outcomes which one would expect if in fact community practice standards were almost never followed, as he, for $550/hour, suggested.

These are only three of the most obvious errors. In addition, perhaps the most vile behavior on the part of the Attorney General’s office revolved around another eight year old (civil) medical malpractice case I was involved in, which went to trial June 0f 2013. The Asst. Atty. General during this completely unrelated civil trial, took a day off at taxpayer’s expense and delivered a copy of my wife’s autopsy (my wife had a past history of drug and alcohol abuse and there was evidence of that noted in the report) to the civil plaintiff’s attorneys. I suspect this is legal but wouldn’t the Florida Bar consider sanctioning such irreverent behavior? It’s misuse of autopsy information at the very least. Judge Levenson also sided with the Attorney General’s office on this issue, failing to react in any meaningful way after being alerted to the unethical conduct. There were no drugs in my wife’s body at the time of her death yet the Asst. Atty. General suggested several times that she had overdosed which she clearly had not. Shouldn’t the Court’s tolerance for the State’s nonsense also be questioned?

Everything I’ve written above is 100% true and for the most part is easily verifiable and largely indisputable. I would like whatever help, advice, or resources that you can provide or make me aware of. I’m currently prison, sixty years old, with the better part of a decade left to serve for something that doesn’t seem like it should have ever gotten past a request for indictment. My Motion for New Trial was filed February 2014, and 3.850 motion was filed August of 2017. These can also serve to verify much of what is written above.

Some other facts about this case which may be helpful:

a. The US Attorney for South Florida declined indictment on this case sometime in early 2011. We know this from Victoria McRae’s (DEA case agent) deposition. The Broward State Attorney followed suit a short time later. It then took the DEA another year to find an authority willing to prosecute the case, and then we suspect it was linked more to the November 2012 election than the pursuit of justice. In a bit of poetic justice, Al Lamberti, the Broward Sheriff running for re-election, lost.

b. My attorney demanded speedy trial after about 15 months on house arrest, in Broward County. Eight co-defendants are yet to be tried. Two co-defendants (older physicians) signed plea agreements. One spoke at my trial on behalf of the State but was minimally damaging to me personally. It’s unlikely that either of the two will do any substantial prison time.

c.  None of the patients that I treated in this case complained, died, or overdosed – Zero!

d. For long periods of time, I was employed by Allcare, a physician placement service, and I was not (for 80% of this case) employed by the clinic in any way.

e. All the doctors except one in this case were paid straight hourly wages. There were never financial incentives for doctors to over prescribe.

f. Prosecution witness Wilson Dias, who dispensed the medicines sold on site (totally legal at that time, but not now) testified for State that most everyone he saw at the clinic appeared to be in pain. He also testified that he controlled the actual pills, not me, or any doctor.

g. A representative from ARCOS, a division of the DEA in Washington D.C. testified for the prosecution that:

The pill numbers that he cited at trial were for the entire clinic and he had no data as to which doctor was responsible for what percentages. This admission alone ought to call into question the admissibility of his testimony since I was severed. He has no idea what I, individually prescribed.

All prescriptions that he saw appeared to be legal

Not a single pill was missing from about 500,000 that passed through the business to 2000 patients. The record keeping was impeccable.

He saw no attempt by anyone to conceal the nature of the business which would again argue against the bad faith aspects of this case.

h. After trial, we discovered evidence that the office manager, Nicole Souza, was working in concert with one of the owners to falsify records, decrease patient wait times, and thereby boost profits. She testified for the prosecution. Also, Ms. Souza’s parents are international fugitives from a fraud case and there was some suggestion that the Attorney General’s office could have used that fact to influence her testimony. Those things being true, her testimony ought to be taken lightly or even disallowed.

i. Mark Cukierman, MD, another State’s witness lied on the witness stand about his past record and about how he found the clinic. That was proven. Again the Court did nothing.

j. 200 of the clinic’s filed were entered into evidence, supposedly randomly selected. Under oath we got case agent Victoria McRae to admit the Florid Asst. Attorney General, Julie Hogan, told her which ones to pull for the case. Selection was not random.

k. We have long suspected that a 6thundercover existed and that he also was turned away. With clinic sign in sheets, this could be further investigated as we know the approximate time frame within about a one month window.

l. Other similar cases have also been reported and we are now at the point where some useful case law is beginning to become available. There are now published cases from other jurisdiction where the MRI’s were purposely over-read by the radiologist and that in fact is the origin of the criminal conspiracy. This was discovered after the trial and conviction. Furthermore the hard copies of the MRI exams of the spines are really evidence and the MRI reports, without corroborating expert testimony ought to be considered hearsay. It would at this point be useful to examine the hard copies of the MRI exams, for both reasons. 

m. A polygraph was offered early on in the investigative process and would be extremely useful in determining bad faith or ill intent. Attorney General had little interest in them and that should tell everyone something about this case and the real motivations behind it. The original offer still stands.

Please let me know if you have ideas for this case going forward. I appreciate any help or advice you might be willing to offer. Thank you in advance for your consideration.

Thomas J. Rodenberg