William Tanner: One Victim of Forfeiture Abuse

William Tanner is one citizen who knows about forfeiture laws and their impact all too well. Tanner is a 62-year-old former pharmacist in Staunton, Virginia. He has diabetes and poor eyesight and poor hearing. In 1989, while a practicing pharmacist at T-Mart Pharmacy in Staunton, Tanner was the target of a police undercover operation that led to his arrest and conviction for illegally filling prescriptions for pain-killing medications and improper record-keeping.

Upon his conviction in 1993, Tanner, who earlier had voluntarily relinquished his pharmaceutical license, was sentenced to 27 months in prison. He served 21 months of that sentence and was finally released in December 1995.

But the government wanted more from Tanner than doing time in jail. They wanted his property. As part of his conviction, Tanner also had to forfeit the $400,000 T-Mart Pharmacy and the entire property he owned in and around it. That property included leases and rents paid to Tanner from two other unrelated businesses operated by other people. The total loss of property and revenue is estimated to be $2 million!

Someone hearing only the results of this case might guess that Tanner was convicted of running a drug operation, handing out pills to pushers to be sold on the streets. Or that he was grossly overcharging customers for medications to become richer and buy up more property in town. Or that he doled out much stronger, more addictive medications to customers than what doctors had prescribed for them. So the government, one might assume, must have been cracking down on Tanner as part of its national and international war on drugs.

But none of this was true in this case, as can be determined by scanning the enclosed edited transcripts of Tanner's trial and appeal. Most of the charges for prescription violations against Tanner centered on the purchases of an undercover police agent, who began his transactions with Tanner with legitimate prescriptions for pain-killers, filled out by a doctor cooperating with police in the undercover investigation.

The undercover agent returned to Tanner for refills several times in the next few months, and Tanner refilled prescriptions for Darvocet and Tylenol No. 3. Legally, such pain-killing drugs can be refilled five times in six months with proper authorization by the physician, either on the original prescription form or by consent given on the phone at the time a customer requests a refill. The government contended that Tanner did not obtain the proper authorizations from the doctor for the refills, and the jury agreed.

Tanner also was convicted of charges of illegally filling prescriptions to several customers. Their testimony also centered on prescriptions for pain-killers, rated Schedule III and IV. These customers had valid original prescriptions, and Tanner was convicted of filling refills without proper authorization during the legal refill-allowed period, or filling prescriptions beyond their authorized time usage period.

Many of these customers who testified against Tanner on these charges admitted that they were cooperating with police, at least in part, because of current or possible charges against themselves for fraudulent attempts to purchase prescriptions with their own forgeries or other illegal means. Most had been under treatment for chronic-pain conditions such as arthritis or permanent injuries.

Interestingly, testimony revealed that the undercover police agents tried to get Tanner to issue refills for the Schedule III and IV pain killers beyond the six-month allowed limit. Tanner refused. Also, the undercover agent repeatedly to get Tanner to give even one refill for the prescription for the more-stringently controlled Schedule II pain-killing drugs, such as Percodan and Tylox. Every time, Tanner refused. And in dealing with a second undercover agent's unsuccessful attempt to refill a Schedule II drug without proper authorization, Tanner called the police to report it!

In terms of record-keeping and alleged discrepancies between pill counts from original inventories, testimony reveals that T-Mart Pharmacy was one of a small minority of pharmacies that had not moved to computerized record-keeping at the time of the offenses in 1989. Tanner, who did not testify at the trial, maintained a business in an old- fashioned Southern way.

He began his operation in the 1960s and for more than 20 years kept a more informal relationship with regular customers and physicians. Without a computer, he kept all records on paper. He knew most customers by first name and tried to take care of them personally.

At the trial, most doctors testified that they had known Tanner socially as well as professionally for years. Tanner contends that he operated with implicit permission from them to use his own discretion in extending refills for the less-stringently controlled Schedule III and IV pain killers to those patients suffering from long-term, chronic-pain conditions - as long as he held within the six-month allowed period for refills of one written prescription. Even with implicit permission, Tanner recognizes that he should not have granted the refills without the legally-required written or oral authorizations, but that this was the way he routinely conducted business.

In terms of record-keeping violations, without a computer and bothered by deteriorating health, Tanner had a history of record-keeping errors long before the investigation. Indeed, the Virginia Board of Pharmacy had twice cited him for violations. During testimony at the trial, an official of the board was asked why they didn't shut him down. There was no real explanation.

The apparent answer was that the police and government were targeting Tanner for potential forfeiture all along. The government and U.S. attorneys, as elected officials and media point out, are relying more and more heavily on revenue raised through forfeitures to meet budgets.

Tanner was well known in his community as a person with assets. He was head of T-Mart Drug Corp., operating the pharmacy on property he owned. He had other real estate. In a small southern city, people knew him well, what he did, and some sense of what assets he had.

Indeed, the special agent of the Virginia State Police who directly monitored the undercover operation against Tanner in 1989, had known Tanner in the early 1970s while then a member of the local Staunton police. That agent had been responsible for bringing misdemeanor charges against Tanner for alleged violations in T-Mart Pharmacy. Those charges at that time in the 1970s were dropped.

In the investigation against Tanner, authorities could have stopped at several earlier points with enough evidence to stop the prescription violations, shut down Tanner's pharmacy and even penalize him with a fine and/or jail sentence. Instead, they chose to wait and extend their probe for more than 10 months of 1989, accumulating additional evidence through their undercover agents' purchases of refills - each one representing one more count of the 25 count-indictment against Tanner.

The greater they enhanced the evidence, the more likely it would be that the government's goal of forfeiture of property would be successfully met. Evidence also was enhanced during the investigation, and between the arrest and trial, regarding alleged discrepancies in pill counts in the pharmacy. And the government's attempt at forfeiture did succeed. At the trial, the jury was not even informed about the 25th and final count of the indictment - the count for forfeiture of the property - until they had found him guilty of the 24 counts of illegal filling of prescriptions and faulty record-keeping.

When the jury was instructed about the forfeiture charge, they were told they only had to decide against Tanner by a preponderance of the evidence, not by guilt beyond reasonable doubt. This lesser standard was at issue in the appeal of the case, which Tanner also lost. The jury also was incorrectly informed that Tanner owned the pharmacy as a sole proprietorship, rather than a corporation. And no mention was made of the total property and the other leases and rents paid to Tanner that also would be forfeited.

Evidence indicates that even the presiding judge was confused about all the elements and ramifications of forfeiture issues. In his final comment at a post-trial hearing to determine the full scope of the final forfeiture of property, the judge says: "If there is anything in this case that is certain, it is that everything is uncertain." But on May 3, 1994, that judge ruled that the forfeiture would include T-Mart Drug Corp., and all real estate owned by Tanner on which the pharmacy was a small and never-specified portion.

The government in Tanner's case got everything it had targeted from the start. This is what often happens in forfeiture cases. There is a criminal offense alleged. Evidence is gathered, charges brought, and any property remotely connected with the facilitation of the crime gets scooped away from the defendant and deposited into the coffers of the government.

It happens in small-town Southern environments such as Staunton, Virginia, where Tanner did business as an old-fashioned pharmacist. It happens in places like the Miami area, where police stopped minorities driving on the highways and took money they were carrying because they suspected the money could have been part of drug deals. Though drug charges were never filed, the police kept the money.

As our governments on the state and federal levels struggle to dig out from under huge budget deficits, forfeiture of expensive personal property has become one of the best revenue-producing outlets around. The public is just now beginning to catch on, and so are Congress and the media.

It began years ago with apparent good motive in efforts to prevent illegal drug- trafficking. Various amendments were added to The Comprehensive Drug Abuse Prevention and Control Act of 1970. Originally, the law provided for forfeiture of drugs, raw materials and equipment used to make them, the actual property that contained them, and anything used to illegally transport the drugs.

In 1984, the Act was amended to provide for the forfeiture of "all real property... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of... a violation."

This is what the government has used to go hunting for revenue. William Tanner was part of the hunt. His case is now on appeal with the U.S. Supreme Court, but with that court's recent forfeiture ruling Tanner and those like him have little reason for optimism.

Tanner is 62 years old and in declining health. His wife divorced him during the court proceedings. His reputation in his community has been almost completely ruined.

Today, Tanner wants to be part of the sincere efforts of those citizens, media and elected officials who stand up and say this form of government abuse has gone too far. As Congress begins hearings on forfeiture and the media increases its own investigation into this government practice, the story of William Tanner and those in similar situations need to be told!

Other documents on the Tanner case