A093 (Rev. Document 3 Filed 05/31/16U5Pargehli ottoman zoi?koomz UNITED STATES DISTRICT COURT T?I?tli?d {?tjh District of Minnesota my .30 IN THE MATTER OF THE SEARCH OF THE FILED UNDER SEAL - PURSUANT TO ORDER BUSINESS AT 7801 AUDUBON 5 A ROAD, CHANHASSEN, MINNESOTA, 55317 Case No. 2 f4 :7 APPLICATION FOR A SEARCH WARRANT l, a teder ll law oft?ieci or an attoiney f01 the govei nme,nt IeLitIest a search warrant. and state under penalty of peijtn Iliat have IL ison to believe that on the following peison Oi piopcr:ty THF BUSINESS I DC ED A 7801 AUDUBON ROAD, CHANHASSEN, MINNESOTA, 55317 located in the State and District of Min nesota, there is now concealed: See attached list ofitems to be seized - The basis tor the search under Iietl. R. Ci?im. P. 4 I is {check one evidence of a crime: contraband fruits of crime or other items illegally possessed; piopeiiy dL signed IOI use intended f01 use, or used In committing a a pm inii to he ar iested 01 a pet son who is unlawfully testrained. The seaich is Iclated to 'a violation of: Code Title 2 l. United States Code. Section 841 Possession with intent to distiibute a contiolledl . . substance Title 2 l. United States Code. Section 840 ConspiraC) to disttibute a contiolled substance The application is l'JLlSE?tl on these facts; See attached Affidavit. Continued on the attached sheet. IlliilirlI'I Imr?It Signature Sworn to herl'rt'll'L' iIiI_-. and signed in my presence. .- I -- I More. Slicti ial nt D2116: 1: . d" . itl'rII' juuie. y'l?L'f, 6? f: "Ai- (fair. i - Judge? 3 Signaling I City and State: MN J- Init U. S. M: iIzislrIIte PiiriiecI'Nc um and [Hit i 3:1 an US.) ST. PFII ll. CASE Document 3 Filed 05/31/16 Page 2 Of 12 STATE) OF MINNESOTA i ss. AFFIDAVIT OF MARC B. LOMBARDI COUNTY or HENNEPIN 1 (1544;? 35% (373,14 3 Your Af?ant, Marc R. Lombardi, being ?rst duly sworn under oath, states" that the following is true and correct to the best of his knowledge: 1. I am a Task Force Of?cer assigned to the Drug Enforcement Administration?s Tactical Diversion Squad. I am also employed as .a Detective with the Washington County Sheriff?s Of?ce. I have been employed at the Washington County Sheriff?s Of?ce for approximately 1'7 years. 2. As a member of the DEA Task Force, my responsibilities include,? investigating the diversion of controlled substances in violation of federal drug laws. I have investigated many cases involving the diversion of prescription controlled, substances. I have received training from both the DEA and the Washington County Sheriff?s Of?ce regarding the investigation of drug diversion crimes. I have also received specialized training related to the investigation of prescription drug offenses and the diversion of these substances for recreational use. Based on training and experience, I am familiar with the laws, regulations, and procedures related to the diversion of prescription drugs to the illicit market as well as techniques employed by registrants to divert controlled substances. I I 3. This af?davit is submitted in support of an application for a warrant?to?p search the business located at 7801 Audubon Road in Chanhassen, Minnesota 55317, as further described in Attachment A (the ?Subject Premises?), for the CASE Document 3 Filed 05/31/16 Page 3 of 12 evidence, fruits, and instrumentalities of violations of Title 21, United States Code, Sections 841 and 846, as further described in Attachment B. 4. This af?davit is based on my personal knowledge, interviews of witnesses, my review of records obtained through subpoena or of?cial request and during the execution; of search warrants, information received from other law enforcement agents, my experience and training, and the experience of other agents. Because this af?davit is being submitted for the limited purpose of establishing probable cause in support of securing a-search warrant for'the Subject Premises, I have not included each and every fact known to me concerning this investigation. I have set forth only the facts I believe are necessary to establish probable cause to believe that evidence, fruits, and instrumentalities of violations of Title 21, United States Code, Sections 841 and 846 are located at or in the Subject Premises. Legal Background 5. The controlled Substances Act makes it unlawful ?for any person knowingly or intentionally . . .. to manufacture, distribute, or dispense a controlled substance.? 21 U.S.C. 841(a)(l). Authorized medical professionalse?for example,? physicians who are registered and assigned a DEA number?are authorized to dispense controlled substances only ?for a legitimate medical purpose . . . acting in the usual course of his [or her] professional practice.? 21 C.F.R. Accordingly, ?physicians can be prosecuted under Section 841 when their activities fall outside the usual course of professional practice.? United States D. Moore, 423. CASE Document 3 Filed 05/31/16 Page 4 of 12 - US. 122, 124, 131 (1975); see also United States v. Birbragher, 603 F.3d 478, 486-87 (8th Cir. 2010) (reviewing Section 841 applicability to physicians). 6. -The Controlled Substances Act de?nes certain drugs, other Substances, and their immediate precursors, as ?controlled substances.? 21 U.S.C. 802(6). These controlled substances are listed within one of ?ve established Schedules, Schedules 21 U.S.C. 802(6). Placement of a controlled substance within a Schedule depends on the drug?s potential for abuse and accepted medical use. 21 U.S.C. 812(b). Within this continuum, Schedule I controlled substances are those drugs, substances, and immediate precursors with a high potential for abuse and no accepted medical use in the United States, such as heroin. 21 U.S.C. 812(b)(1). Schedule II controlled substances have a currently accepted medical] use but, like Schedule I controlled substances, have a high potential for abuse, and the abuse of which may lead to severe or physical dependence. 21 U.S.C. 812(b)(2). Hydrocodone, oxycodone (a/k/a Percocet), and fentanyl are Schedule II controlled substances. Background of the Investigation 7. On April 21, 2016, at approximately 9:43 the Carver County Sheriff?s Of?ce responded to a medicallrrequest at the Subject Premises. UpOn arrival at the Subject Premises, Sheriff?s Deputies found Individual A lying on the ?oor in an elevator. Individual A was not responsive and later pronounced dead at the scene; f) CASE Document 3 Filed 05/31/16 Page 5 of 12 The Initial Search of the Subject Premises on April 21, 2016 8. On April 21,? 2016, at approximately 2:30 the Carver County Sheriff?s Office executed a search warrant at the Subject PremiSes. During the search, of?cers recovered 15 white pills wrapped in white tissue paper in a dressing room located on the east side of the second ?oor. The phrase ?Watson 853? was stamped on the pills. According to an internet search, the ?Watson 853? stamp identi?ed the pills as 325mg/10mg acetaminophen and hydrocodone tablets. Of?cers did not ?nd a prescription bottle associated with these pills. 9. Of?cers also searched a bedroom located in the Subject Premises. According to Kirk Johnson, who identi?ed himself as Individual A?s personal bodyguard, this ?green room? was Individual A?s private bedroom. During a search of the bedroom, of?cers recovered a white oblong pill stuck in the bedding near the ?oor. The white pill was also stamped with ?Watson 853,? identifying it as "a 325mg/10mg acetaminophen and hydrocodone tablet. 10. During the search of Individual A?s bedroom, of?cers also recovered a bottle of Bayer aspirin and a bottle of Aleve aspirin 0n the to the right cf - the bed. Upon inspection, however, of?cers found that the bottles did not contain aspirin. The bottles instead contained the same white oblong pills with ?Watson 853? stamped in the middle that had previously been recovered from the dressing room and in the bedding. According to the recovering of?cer, the Aleve aspirin bottle contained 20.5 ?Watson 853? pills and the Bayer aspirin bottle contained 64.5 CASE Document 3 Filed 05/31/16 Page 6 of 12 ?_?Watson 853? pills. Of?cers did not locate a prescription bottle associated with these pills. 11. During the search, of?cers located a suitcase in a room adjoining Individual A?s bedroom (the ?mirror room?). Of?cers recovered two prescription bottles inside of the suitcase. According to the labels on the bottles, the_ prescriptions were written by Dr. Michael Schulenberg on April 2016. Both prescriptions were made out to Kirk Johnson, Individual A?s bodyguard. The ?rst prescription was for ergocalciferol, a non?controlled form of vitamin D. Inside of the bottle officers found seven green capsules marked ?194.? According to the internet website drugscom, the imprint ?194? indicates that a pill contains 1.25 mg of Vitamin ergocalciferol. The bottle also contained eight oval yellow pills stamped with on one side and the number 8 on the other side. According to drugs.com,- this imprint indicated that each pill contained 8 mg of ondensetron hydrochloride (a/k/a Zofran), a non-controlled medication used to control nausea and vomiting. 12. The second prescription was for ondensetron hydrochloride. The label stated that Dr. Schulenberg wrote the prescription to Johnson on April 7, 2016. Of?cers found eight white round pills and four ~half pills inside of the bottle. The pills were stamped According to drugs.com, the imprint is placed on 325mg/5mg acetaminophen and oxycodone. Of?cers did not recoveril a prescription related to these acetaminophen/oxycodone pills. CASE Document 3 Filed 05/31/16 Page 7 of 12 The Interview of Dr. Schulenberg 13. According to medical records obtained during the investigation, Dr. Schulenberg treated Individual A on April 7 2016. Dr. Schulenberg did not I prescribe any medication to Individual A that day. Medical records show that Dr. Schulenberg did prescribe ondensetron hydrochloride and Vitamin ergocalciferol to Johnson on April 7, 2016. - 14. On April 21, 2016, of?cers from the Carver County Sheriff?s Of?ce interviewed Dr. Schulenberg. During the interview, Dr. Schulenberg explained that he was Johnson?s physician. Dr. Schulenberg stated that he examined Individual A on April 7, 2016, at ohnson?s request. Dr. Schulenberg stated that he administered ?uids to Individual A that day. Dr. Schulenberg initially denied having prescribed medication to Individual A during the April 7 examination. Dr. Schulenberg later admitted he prescribed ondensetron and Vitamin for Individual A on April Although this prescription was intended for Individual A, Dr. Schulenberg admitted he put the prescription in Johnson?s name. 15. During the interview on April 21, 2016, Dr. Schulenberg further admitted that Johnson asked him to prescribe pain-medication to Individual A 'on April 14, 2016. Although Dr. Schulenberg did not see Individual A on April 14, 2016, he agreed to write a prescription for 15 tablets of Percocet, which is a type (if oxycodone/acetaminophen. This prescription was intended for Individual A, but Dr. Sch-ulenberg wrote the prescription in Johnson?s name. I 7* CASE Document3 Filed 05/31/16 Page 8 of 12 . 16. According to news reports, Individual A performed a concert in Atlanta, Georgia, on April 14, 2016; Individual A ?ewr back from Atlanta to Minneapolis immediately after the show. Individual A reportedly passed out on the plane. At approximately 1:00 am. on April 15, 2016, Individual A?s airplane made an emergency landing at Quad City International Airport in Moline, Illinois. Individual A received medical care at a local hospital before continuing on to Minneapolis. 17. According to medical records, Dr. Schulenberg also examined Individual A on April 20, 2016. Individual A reported feeling antsy and believed it might be related to having stopped taking Tylenol that morning. When asked by Dr. Schulenberg if the Tylenol contained any other ingredients, Individual A said s/he did not know. According to Dr. Schulenberg?s notes, ?independent sources of history?. reported that Individual A?s Tylenol contained hydrocodone. During the April 20 examination, medical staff preformed a urinalysis on Individual A. The urinalysis tested positive for opiates. According to medical records, Dr.? Schulenberg expressed concern that Individual A could be suffering from opiate Withdrawal. The Medical Examiner 18. On May 9, 2016, the medical examiner assigned to perform the autopsy 011' Individual A contacted the Carver County Sheriff?s Of?ce regarding the results of the toxicology screening on Individual A?s blood. According to the medical examiner, the toxicology screening. performed on Individuail A?s body found hydrocodone and oxycodone in Individual A?s urine. The medical examiner also CASE Document 3 Filed 05/31/16 Page 9 Of 12 found high levels of fentanyl in Individual A?s blood. The medical examiner explained that a cancer patient who regularly wore a fentanyl patch for managing pain would typically have a fentanyl level of approximately 3 micrograms per liter of blood. Individual A?s blood had 67 micrograms of fentanyl per liter of blood. I l9. Based on my training and experience, I know that fentanyl is a opioid analgesic that is often used as a medical anesthetic or pain killer. Fentanyl is extremely potent?roughly 80 to 100 times more potent than morphine . and 40 to 50 times more potent than pure, pharmaceutical-grade heroin. Fentanyl may be ingested several ways, lincluding in pill form or through use of a transdermal patch. Based on my training and experience, I know that fentanyl may also be ingested in liquid form or through an inhaler or nasal spray. 20. Of?cers involved in the April 21 Search of the Subject Premises recall seeing bottles of nasal spray in Individual A?s bedroom and other areas in the Subject Premises. Speci?cally, Detective Christina Wagner observed bottles of nasal spray and bottles of 5-hour energy drink in Individual A?s bedroom on April 21, 2016. Detective Wagner also observed a black shoulder bag on the right side of Individual A?s bed. Detective Wager searched the contents of the bag and found Individual A?s passport, which was issued February 8, ?2016, as well as jewelry, sunglasses, and a bottle of asoGel nasal spray. Detective Wagner also observed another bottle of asoGel nasal spray in the suitcase along with the tvxio prescription bottles written out to ohnson by Dr. Schulenberg. CASE Document 3 Filed 05/31/16 Page 10 of 12 21. Because the of?cers involved in the April 21 search did not know Individual A had fentanyl in his blood at the time of his death, they did not realize the evidentiary signi?cance of these items and did not collect them during the execution of the search warrant. Conclusion 22. Based on the facts set forth above, and based on my training, experience, knowledge, there is probable cause to believe that evidence, fruits, and of violations of Title 21, United States Code, Sections 841 and: 846, as further described in Attachment B, are located at or in the business located. at 7801 Audubon Road in Chanhassen, Minnesota 55317. Further your Af?ant sayeth not. 3-1an R. LOi?nlJ?lJt'll Task Force {miner MSPDO-TDS SUBSCRIBED and SWORN to before me riffs..- 'l day of May, 2016. H.- - -. The Honorable Janie Mayeron Unilzi-d States Magistrate Judge CASE Document 3 Filed 05/31/16 Page 11 of 12 ATTACHMENT A Location to be Searched The Subject li?rcmises is a business located at 780]. Audubon Road in Chanhassen, Minnesota 55317. This business is located in a large White building on a nine-acre property. The property is on the east side of Audubon Road just south of Minnesota Highway 5. ?l?here is also a smaller White circular building located to the east of the main building. CASE Document 3 Filed 05/31/16 Page 12 of 12 List of Items-to be Seized 1. Any and all medication bottles, herbal supplement bottles, hour energy bottles or other potential forms to transport the drug fentanyl or believed to be fentanyl in the form of liquid, pills, patches, swabs and nasal spray. 2. Any and all items believed to be used, contaminated or? otherwise associated with narcotic use including but not limited to any cups, ., .. towels or bedding/containers which may have contained or used to conceal? . I evidence of an overdose or narcotic use, including vomit, urine, blood, feces. Notes, ledgers, receipts, prescriptions, and other documentation that could' explain the source of any medications and/or illicit narcotics discovered in the premises.