A0 93 (Rev. 12/09) Search and Seizure Warrant AUSA Joseph H. Thompson (612) 66465 88 AUSA Andrew S. Dunne (612) 664-5626 UNITED STATES DISTRICT COURT for the District Of Minnesota IN THE MATTER OF THE SEARCH OF THE FILED UNDER SEAL - PURSUANT TO ORDER BUSINESS LOCATED AT 7801 AUDUBON ROAD, MINNESOTA, 55317 Case No. 5?15 (35 1? 0 APPLICATION FOR A SEARCH WARRANT I, a federal law enforcement Officer or an attorney for the government, request a search warrant and state under penalty of perjury that I have reason tO believe that on the following person or prOperty: THE BUSINESS LOCATED AT 7801 AUDUBON ROAD, CHANHASSEN, NIINNESOTA, 55317 located in the State and District Of Minnesota, there is now concealed: See attached list of items to be seized The basis for the search under Fed. R. Crim. P. 41(c) is (Check one or more )1 evidence Of a crime; contraband, fruits of crime, or other items illegally possessed; property designed for use, intended for use, or used in committing a crime; a person to be arrested or a person who isunlawfully restrained. The search is related to a Violation of: . Code Section Offense Description Title 21, United States Code, Section 841 Possession with intent to distribute a controlled substance Title 21, United States Code, Section 846 Conspiracy to distribute a controlled substance The application is based on these facts: See attached Af?davit. Continued on the attached sheet. Mpplicantps Signature Sworn to ore me and signed in my presence. - Manc?aloombardi, Special Agent Date: I 0 /Lb Printed Namea Title . I I . Judge?s Signature 0 City and State: Minneapolis, MN Janie/S. Mayeron, U.S. Magistrate Judge . Printed Name and Title 7 STATE OF MINNESOTA - ss. AFFIDAVIT OF MARC R. LOMBARDI COUNTY or HENNEPIN M3 - 3o 3 35,14 3 Your A?iant, 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. 1 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 17 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 my 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. 3. This af?davit is submitted in support of an application for a warrant to search the business located at 7801 Audubon Road in Chanhassen, IMinnesota 55317, as further described in Attachment A (the ?Subject Premises?), for the 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 I substance.? 21 U.S.C. Authorized medical professionals?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 canbe prosecuted under Section 841 when their activities fall outside the usual course of professional practice.?- United States 0. Moore, 423 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.? 21 802(6). These controlled substances are listed Within one of ?ve established Schedules, Schedules I-V. 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. 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 medical request 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. 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 Of?ce 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, o?icers 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 on the to the right of 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 ?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 of?cers found seven green capsules marked 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 drugscom; 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 drugscom, the imprint is placed on 325mg/5mg acetaminophen and oxycodone. Of?cers did not recover a prescription related to these acetaminophen/oxycodone pills. 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 A 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 theinterview, Dr. Schulenberg explained that he was ohnson?s physician. Dr. Schulenberg stated that he examined Individual A on April 7, 2016, at Johnson?s request. Dr. Schulenberg stated that he administered I.V. ?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 7. Although this prescription was intended for Individual A, Dr. Schulenberg admitted he put the prescription in ohnson?s name. i 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 of oxycodone/acetaminophen. This prescription-was intended for Individual A, but Dr. Schulenberg wrote the prescription in ohnson?s name. 16. According to news reports, Individual A performed a concert in Atlanta, Georgia, on April 14, 2016.. Individual A ?ew back from Atlanta to Minneapolis immediately after the show. Individual A reportedly passed out on the plane. At approximately 1:00 a.m. 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 rmight 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, 2-016, the medical examiner assigned to perform the autopsy 011 Individual A contacted the Carver County Sheriffs Of?ce regarding the results of the toxicology screening on Individual A?s blood. According to the medical examiner, the toxicology screening performed on Individual A?s body found hydrocodone and oxycodone in Individual A?s urine. The medical examiner also 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. 19. 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, including 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 NasoGel nasal spray. Detective Wagner also observed another bottle of NasoGel nasal spray in the suitcase along with the two prescription bottles written out to Johnson by Dr. Schulenberg. 21. . Because the of?cers involved in the April 21 search did not know Individual AA hadfentanyl in his blood at the time of his death, they did not realize the evidentiary signi?cance of these iterns 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 instrumentalities 70f 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. 7 WM R.Loin1ldi Task Force 0 cer SUBSCRIBED and SWORN to before me dH day of May, 2016. eHonorable Janie g. Mayeron Ited States Magistrate Judge ATTACHMENT A Location to be Searched. The Subject Premises is?a business located at 7801 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. There is also a smaller White circular building located to the east of the main building. ATTACHMENT List of Items-to be Seized 1. Any and all medication bottles, herbal supplement bottles, 5? 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 evidence of an overdose 0r 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.