Doctors Randy and David Chube followed their father's footsteps all the way to his alma mater, Meharry Medical College in Nashville, and all the way back to Gary, Indiana. The two young African-American physicians could have practiced medicine in more glamorous, lucrative places. They chose to work alongside their father, Dr. David Chube Sr.

 

"Being born and raised in Gary," Randy says, "I wanted to go back to the community, to give back. I felt a sense of obligation." When the brothers set out on their own in 1998, they didn't go far. They hung their medical licenses up in an office they shared 15 blocks up Broadway, Gary's main thoroughfare, from their dad's. Before long, they had almost 6,000 patients and opened a second office in nearby Munster. Randy became known throughout the area for his gentle manner and his skilled, award-winning treatment of HIV-AIDS patients, whether they could pay or not. David was Dr. Congeniality, oozing charm and swagger, the easy banter of an ex-jock. David went to college on a basketball scholarship. Like his father, he was willing to give down-on-their-luck patients a break. One man who owned a small meat market paid for his office visits with bags of steaks and ribs. The brothers did well by doing good. They lived with their handsome families in swank houses in Chicago and the western suburbs. Their lives were charmed. Their plummet from grace was a free fall.

In 2004, the United States government began equating the brothers with street-corner drug dealers, accusing them of writing prescriptions for powerful pain medications such as OxyContin and Vicodin as well as other legal drugs for no "legitimate medical purpose and outside the scope of professional practice." The recipients of the prescriptions were said to be 98 of the Chubes' nearly 6,000 patients. Contained in a 33-count, 53-page indictment, the charges included unlawful distribution of narcotics, conspiracy and health-care fraud.

The Chubes "weren't functioning as doctors," the jury was told by Asst. U.S. Atty. Diane Berkowitz at the end of the brothers' two-week trial in the U.S. Courthouse in Hammond in spring 2006. According to the veteran prosecutor's closing argument, the brothers performed shoddy physical exams or none before prescribing powerful narcotics to even new patients. They kept lousy charts and files. They ordered few tests and turned a blind eye to obvious signs of abuse. One troubled young woman, Berkowitz said, spiraled out of control and became an addict under their care. "They were just handing out pills," she said.

Then it was Kevin Milner's turn to speak. A former federal prosecutor in Indiana, Milner was the Chubes' lead attorney.

Milner said the government "cherry picked" the files of the most troubled patients and was trying to send two honest doctors to prison, essentially for what amounted to allegations of malpractice, a civil offense. To do it, he said, prosecutors were using criminal statutes "that you use for [former Panama dictator Manuel] Noriega, for people that are smuggling in drugs from Panama, for large-scale cocaine dealers who move kilograms of cocaine in trucks."

"These are doctors," he said. "They're paying taxes and they have a business. These guys are not drug dealers."

After nearly two days of jury deliberations, Randy Chube was acquitted of all but one count of unlawful distribution—in this case, writing a single prescription that he, his brother and their office manager insist he did not even write.

"I thought maybe it was a witch hunt to teach other doctors a lesson," one juror told me recently about the trial. "We went over all 98 charts, some of them many times. We started compromising. We thought maybe they'd get their licenses suspended for a while. I don't believe one person in that jury room thought they were going to go to jail.

"I thought the whole thing was actually unfair," continued the juror, who asked that her name not be used because she has started a new job. "When the system says it's a jury of your peers, the fact is, none of us were their peers. When they hand us boxes and boxes of medical records, how can any of us know what's going on? I came away having a negative feeling about the whole legal system."

 

David Chube wasn't as fortunate as his younger brother. Although the panel acquitted him of the vast majority of the charges, it found him guilty of four counts of distribution. Three of the counts involved writing prescriptions for one patient. He was also convicted of two counts of health-care fraud.

But even the prosecution admitted that the fraud involved a small amount of money and David had not received a dime beyond his $65 office fee. He had written a prescription for OxyContin and Viagra for a patient whose insurance had run out. He wrote it in the patient's wife's name. David says he was thinking with his heart and not his brain. "It's like throwing a bad pitch," he says. "The minute you throw it, you wish you could take it back."

Still, the brothers' lawyers, Milner and his co-counsel, Ross Hubbell, had been so confident during the trial that they did not call a single witness. They remained confident even after the verdict. Before the sentencing in the fall of 2006, they figured Randy might get at the absolute most six months in prison. David, they calculated, was looking at 21 to 27 months, but would probably receive probation and a fine. Whatever happened, they'd both be free and practicing medicine by now.

Instead, as they await word of the outcome of the appeal of their convictions and sentences, Randy, who is now 46, is serving five years at the Oxford prison camp in Wisconsin, the same facility where former Illinois Gov. George Ryan began his life in prison.It was the maximum allowed under the guidelines. U. S. District Judge Rudy Lozano said he regretted he could not give Randy even more time, adding that it was the worst case he had seen in 19 years on the bench and 40 years as a lawyer; even though his Hammond courtroom lies next door to the tough urban landscapes of Gary and Chicago.

"Is the judge nuts?" Northwestern University Law School Prof. Albert Alschuler asked me when I told him about the case and the two brothers' sentences. Commented Alschuler: "Drug sentences under the federal sentencing guidelines are horrendous. Something doesn't seem right about this case. It's baffling."

The judge sent David, now 50, to prison in Minnesota to begin serving his sentence of nearly 16 years. "In one swoop, everything I've worked for is gone," David says in a telephone interview from prison. "Basically, your life is destroyed the day the government accuses you."

Remarkably, under the guidelines, the judge was allowed to sentence David not only based on the counts of which he was convicted, but also on the counts on which the jury had acquitted him. Thanks to a little-known provision of the sentencing guidelines called the concept of "relevant conduct." As professor Alschuler explains it, "you were convicted of A but we'll sentence you of B because we think it was relevant conduct."

"It's a scandalous situation," he says.

The story of the Chube brothers is being played out in doctor's offices and courts throughout the country as physicians, patients and law enforcement officials try to sort the victims from the villains, the scammers from the scammed along the many fronts of America's endless war on drugs.

In recent years, the U.S. Drug Enforcement Administration has investigated thousands of doctors for allegedly writing prescriptions for OxyContin and other narcotics for no "legitimate medical purpose." The DEA even has a Web site devoted to its efforts called, "Cases Against Doctors."

The site goes back to 2003 and lists the DEA investigations that have resulted "in the arrest and prosecution" of a physician. A printout of the list runs almost 50 pages. The Chubes are on page 10.

"It's crazy, the whole thing," says Indiana State Rep. Charlie Brown, whose district includes Gary. "It's a real blemish on the judicial system. These young men were doing good," Brown says. "Someone was after them. It has just devastated the father. And further devastated the medical coverage of Gary."

Scores of doctors nationwide have gone to prison for so-called "drug diversion." Careers have been ruined. Families are torn apart.

Randy Chube's wife, Kelleye, takes their two children, a son, 10, and a daughter, 7, to see their father several times a year, for a few hours at a time. "It's hard, very hard," she says. "I have to be strong for them. It's very hard for me, especially when they don't want to let Daddy go. I've told them there are some people who thought Daddy did some things that were wrong, but Daddy didn't. There was a trial and we're still fighting because we believe there was an injustice. I think they understand that."

David also has two young children. He and his former wife, Jennifer, were divorced in 2004 during the long investigation. "That sure didn't help our marriage," he says.

Advocates for doctors and pain patients say the DEA is cracking down on physicians out of its desperation to rack up quick victories in the drug war. Physicians are easy targets, "low hanging fruit," says Ronald T. Libby, a political science professor at the University of North Florida and the author of "The Criminalization of Medicine: America's War on Doctors."

They keep records. They don't run, or whip out guns when the authorities raid their homes or offices. They have plenty of assets to seize.

 

At the heart of the brothers' appeal is the argument that the government and the presiding judge confused the criminal and civil standards—not just blurring the line, but obliterating it. Eli Stutsman of Portland, Ore., the Chubes' appellate lawyer, travels the country filing appeals on behalf of doctors fighting similar cases. He says the prosecution's two expert witnesses —a pharmacy professor and a doctor frequently employed by the government in such cases—testified as to a civil standard, looking at whether the physical exams were thorough enough, whether the right tests were ordered and a proper patient history taken.

"The Chubes were indicted for drug trafficking, the knowing or intentional distribution of drugs," Stutsman says. "But this case was prosecuted on the civil standard. What's missing is the evidence of a crime. This was not a pill mill. The sentences are Draconian."

 

There is hope. On August 15, a three-panel judge for the Seventh Circuit Court of Appeals overturned the brothers' sentences but not their convictions. Now the same judge who heard their case must resentence them. Stutsman said no hearing date has been set.