Petition for Writ of Certiorari — Hollister Inc. v. Kingsdown Medical Consultants, Ltd.

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In the Supreme Court

OF THE

United States

OcTOBER TERM, 1988

GEOFFREY A. Di BELLA, M.D..

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

NicoL_as M. W. Di BELLA

1401 Fairview Ave.

Bowling Green, Kentucky 4210]

(502) 842-1332

Attorney of Record

QUESTIONS PRESENTED

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LIST OF PARTIES

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TABLE OF CONTENTS

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Legal reasons for the Supreme Court to vacate judgment and

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Writing of prescriptions in the aggregate is not a crime 8

Offense as defined by the Second Circuit is not a crime 8

Second Circuit Court of Appeals didn’t follow correct law

of review and therefore the case must be reversed.... )

Second Circuit Court of Appeals didn’t sufficiently review

Section 2255-Habeas Corpus brief................. 10

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TABLE OF AUTHORITIES CITED

Cases

Beavers v. Belkcam (1981) 636 F.2d 114

Liparota v. United States (1985) 471 U.S. 419, 85 L.Ed

434, 105 S.Ct. 2084

Manley v. United States, 238 F.2d 221 (1956)

United States v. Greenfield, 554 F.2d 179, 54 A.L.R. Fed

632

United States v. Kirk. 584 F.2d 773 (6th Cir. 1978)

U.S. v. Moore (1975) 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed

333

U.S. v. Vamos (1986) 797 F.2d 1146

Statutes

21 Code of Federal Regulation § 1306.04(a)

No.

In the Supreme Court

OF THE

MARCH TERM, 1989

GEOFFREY A. D1 BELLA, M.D..,

Petitioner.

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Geoffrey Di Bella, M.D., respectfully prays that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Second Circuit, denying relief

under the doctrine of Habeas Corpus and 28 U.S.C. 2255 relating

to a judgment of conviction entered against him by the United

States District Court for the Southern District of New York.

OPINIONS BELOW

[he Denial, not officially reported, appears herein at Ap-

pendix B. The opinion of the Court of Appeals, also not officially

reported, concerning the original case appears herein at

Appendix E

JURISDICTION

The Judgment of the Court of Appeals was entered on October

20, 1988 and the request for re-hearing was denied on December

2

21, 1988. The jurisdiction of this Court rests on 28 U.S.C.

1254(1), 28 U.S.C. 2255, and Article I, Section 9 of the

Constitution.

STATUTORY PROVISIONS

The statutes involved are 21 United States Code, Sections 802,

822, and 841. Also, involved is 21 Code of Federal Regulation

§ 1306.04 (a). The pertinent parts of the statutes and Regulation

are set forth in the appendix, part C.

STATEMENT OF THE CASE

Introduction

There was a revolution and this country was founded because

certain principles were considered so basic, so fundamental, so

essential that they had to be part of a civilized society. Those

principles all involve justice. Some like Due Process, Habeas

Corpus, Trial by Jury are specifically set forth in the Constitution

and others are so intertwined with a fair application of those

concepts—like instructing the jury properly, following the legal

procedures that are required, having a meaningful attorney-client

relationship, having an appeal that truly evaluates the trial’s

fairness—that they necessarily must be considered a part of

Constitutional Rights. In our twentieth century American society

is this all to be forgotten? Superficial judgments are being made,

and apparently the Courts now are more concerned about “mov-

ing cases”, thereby counting numbers to justify their existence,

instead of assuring that justice is done in each case. In addition

there seems to be a hysteria about anything that involves “drugs”

so that careful evaluation is no longer deemed appropriate.

Unfortunately, this superficiality has struck this case—it hasn't

been properly handled—and now it is imperative that the Court

act to rectify the matter.

Perhaps part of the reason for the Courts failure to act properly

was that this case doesn’t fall under the categories of gimmicks or

of sensationalism. Perhaps the lower Courts would have been

more concerned about the many errors that occurred if that had

been the case. So, no—this is not about a grisly murderer, a mafia

chieftain, or a crazed sex assaulter. There has been no movie

made that is pressuring the Court to do what it should have done

in the first place. Newspaper headlines and articles have not been

written urging the Court what to do. But that doesn’t mean this

Case is not important. It is important. Obviously, it is important to

the Appellant because a great injustice has been done to him. It is

important because it indicates the Courts are not working prop-

erly and therefore they need to be directed to get back on the

proper course. It is important because the law deals with the

practice of medicine and there is great conflict in the interpreta-

tion of the laws applicable to this kind of case. There are over

500,000 doctors in the United States—this case effects every one

of them

The Charge and the Results

In December 1984 Dr. Di Bella was indicted for conspiracy to

distribute and two substantive counts of distribution of metha-

qualone (“quaaludes”) a “Schedule II” controlled substance

The indictment, which named eight defendants in various combi-

nation of counts, concerned the activities of an organization called

Jorum, which the government alleged served as fronts for the

distribution of quaaludes. Dr. Di Bella was one of five physicians

named in the indictment, each of whom worked for various

periods at the clinical facilities run by Jorum in the City of New

York. Following a jury-tnal, Dr. Di Bella was acquitted of

conspiracy, but convicted of the distribution counts

He was sentenced to concurrent sentences of two years impris-

onment, to be followed by two years of special parole, and a

$5,000.00 fine. He presently is on the special parole

Potentially Negative Aspects of the Case

An understanding of some of the alleged indicators of illicit

conduct will assist in an understanding of this case and, will

further indicate why the overturning of this case is mandated. A

potential damaging inference may arise from the fact it involves a

controlled substance drug. That would not be a fair inference

This arrangement with Jorum was considered a specialized prac-

4

tice for treating insomnia wherein the treatment mode was a drug,

and the drug of choice was quaalude (methaqualone). At the

time Methaqualone was a schedule II controlled substance drug.

However, this merely means theoretically it has a high potential

for abuse. It wasn’t and isn’t clear if “abuse” meant in a

recreational sense or in a dangerous sense, like addictive or life

threatening. That wasn’t brought out clearly in trial, though it

seemed there was an attempt at one time to portray the drug as

dangerous. Likewise it wasn’t brought out in trial if it was, in fact,

considered dangerous by the medical community. Further, no

patient was brought out to show that patent had been harmed.

Regardiess, the drug very clearly at the time was considered

appropriate for insomnia, and there was little testimony that the

drug, in relation to some other drug, was not appropriate for the

patients who were seen at the Jorum facility. Indeed, no one

contradicted Dr. Di Bella’s testimony that it was an excellent drug

for the treatment of insomnia.

Another factor that was suppposed to infer a knowledge of

wrongfulness was the amount paid to the Doctors. To be sure the

fee paid by the patient, $150.00 to $200.00, was high but the bulk

of the money went to Jorum. When analyzed about who got the

most money this seems to re-enforce the view that Dr. Di Bella

was naive about the nature of the patients, and was as much a

victim as anyone else.

Indeed, a careful review of the facts will point to only one

conclusion. Dr. Di Bella was a very naive doctor, and inexperi-

enced about operating a medical practice, and because of these

factors unknowingly became a participant in a sham medical

operation. The fact that the prosecution was unable to bring forth

a witness to say that Dr. Di Bella ever behaved as if this was a

sham is only one of many aspects of the evidence which suppports

this interpretation. Unfortunately, detailed background of Dr. Di

Bella was not provided at trial nor did he give, at trial, an

explanation of his impressions when he testified because he was

under the mistaken belief he was to be as detached and unemo-

tional as the situation allowed. Nevertheless, a review of the

psychological reports done after trial, which are part of the Reply

Brief in case no. 86-1224 (Second Circuit) and the Reply Brief in

case no. 88-2225 (Second Circuit) confirm and make it over

whelmingly clear that Dr. Di Bella had no wrongful intent at the

time he wrote the prescriptions which are the subject of this case

Inappropriate Evaluations

No one is asking that you believe Dr. Di Bella at this point in

time. All that is being asked is that the Courts follow the law

Despite repeated requests this hasn’t happened. Accordingly it is

necessary to explain some of the issues which have been raised

and the Courts failure to adequately judge them. To begin with

the trial was not a fairly conducted forum attempting to ascertain

the truth. For example, the Judge made no effort to control the

testimony of the expert witnesses and therefore their testimony

improperly used legal language which at the least confused the

jury, and, in any event, usurped their function. Numerous exhibits

and compilation of exhibits were allowed into evidence without

proper foundation. Two points deserve particular emphasis and

therefore need to be brought out for the purposes of this Brief.

One, and a major problem that compounded the unfairness of this

trial, was that Dr. Di Bella didn’t explain his point of view in

personal terms concerning why he acted as he did. Second, the

instructions to the Jury were wrong. Arguably, they were very

close to being correct, but since so much of this case depended on

an analysis of Dr. Di Bella’s mental state, to imply to the jury that

an analysis of Dr. Di Bella’s mental state was not neces-

sary—because an objective standard of evaluation applied to the

situation—plainly was error. In other words, the fact of the matter

was that the law as explained to the jury was not and is not the

law!

Court of Appeals Failures

The failure to follow the law is even more fnghtening in the

Court of Appeals. It was and is absolutely extraordinary that the

Courts make the superficial analysis that they have and think of

Dr. Di Bella as such a simple-minded person. It is not surprising

that in their cursory opinion they don’t get the facts nght.

6

An examination of the Appeals Court opinion, Appendix E,

shows this to be the case. They mention Dr. Di Bella, but make

no distinction between him and the other doctors. Everyone

agrees this was not the case. Everyone agrees that the Doctors

worked at Jorum at different times. Further, the Doctors followed

different procedures and spent differen. amount of times with the

patients. For example, Dr. Di Bella was the only one who

introduced hand-outs advising of the proper use of methaqualone.

The Court also mentions one doctor, Dr. Gourji, as if to say he

realized his guilt subsequent to trial and therefore didn’t waste

everyone’s time with an appeal. That was completely wrong. It

again shows the lack of real examination of the case. That doctor

simply had not been sentenced by the time of the appeal and

therefore couldn’t appeal. (Entry of judgment must take place

before an appeal may be submitted). And that doctor, later did, in

fact, appeal. If they can’t get the facts correct then it isn’t any

wonder that they didn’t get the law correct. No other jurisdiction

agrees with the Second Circuit in their lack of requirement of a

mental state. No other jurisdiction says that a doctor’s mental

state is not a necessary component in a guilty finding in relation to

the illegal prescribing of drugs.

Habeas Corpus “2255” Procedure Didn’t

Rectify Errors

The issues were properly raised before the trial Court in a

motion after the Verdict, again raised in the Court of Appeals,

again raised in a Writ before the Supreme Court, again raised in a

Request for a Writ of Habeas Corpus before the Trial Court

(“2255 motion”), and again raised with the Court of Appeals.

The lack of consideration given to these issues is, by itself, a

fundamental denial of due process.

The improper interpretation of the law is not just a remote

instance. It happens throughout the case. Accordingly, even

though Appellant again has raised all the issues in the 2255-

Habeas Corpus procedure—and in addition raised the illegality of

the procedure, and the ineffectiveness of counsel—the trial Court

and the Circuit Court for the Second Circuit Appellate Division

have not been willing to fully and properly answer the issues.

>

Instead, for the most part, they answer by simply denying. Thus,

for example it isn’t surprising that the trial Court in responding to

the 2255 Petition (Appendix A) exaggerates the guilt indicating

factors, shows the Court’s misunderstanding of the reference to

psychological principles, and totally misstates the defense conten-

tion on entrapment (which contrary to what was stated by the

court, had nothing to do with prosecuting similar violators).

They don’t have the right to blame the briefing. It is submitted

the briefs in this case were excellently written, and the facts were

accurately reported by the Appellant in his trial court briefs, and

in his opening and reply appeal briefs. It is submitted that the

Government briefs were not as well written, and didn’t as fully

bring the issues in focus, but were not poor either. Thus what has

happened in this case is not proper. And it shouldn’t be legal.

Now this Court must act to change the situation. This “cover-up”

is no more tolerable in the Judicial Branch than it is in the

Executive Branch, and it’s directly opposite to our values of

Government.

The illegalities of this case are by themselves sufficient for this

Petition to be granted and, without further pleadings, the Judg-

ment vacated and the Writ issued. As stated earlier, while Dr. Di

Bella maintains his innocence, it isn’t necessary for the Court to

believe his version for the judgment to be found void and

therefore vacated.

LEGAL REASONS FOR THE SUPREME COURT TO VA-

CATE JUDGMENT AND IMMEDIATELY GRANT WRIT

OF HABEAS CORPUS

A PERSON MAY NOT BE APPROXIMATELY GUILTY

First, in America a person may not be “approximately” guilty

of a crime. Over objection, the indictment was given to the Jury in

this case and the language of the indictment was that an approxi-

mate number of prescriptions had been written (Appendix D).

That is plain, severe, reversible error. There is no such law.

Nothing more should need to be said: the responsibility of the jury

before it is allowed to enter a conviction is to be convinced with

definiteness and certainty that each of the issues has been proven

beyond a reasonable doubt. NOT APPROXIMATELY.

8

WRITING OF PRESCRIPTIONS IN THE

AGGREGATE IS NOT A CRIME

The second illegality is that there is no such crime as defined by

the Second Circuit to the jury. The indictment charged a group of

prescriptions had been written. While if this had merely appeared

in the indictment it might not have been a flaw. However, the

indictment was given to the jury and it never was explained to the

jury that each prescription must be evaluated. Accordingly, any

determination cannot be valid because one can’t be guilty of

prescribing a group of prescriptions; one only may be guilty of

wrongfully writing one prescription. United States v. Kirk, 584

F.2d 773 (6th Cir. 1978). This is not sophistry. While one may

have been convicted of many wrongful prescriptions and therefore

guilty of prescribing a group of prescriptions, to merely allege the

group takes away the necessity of each individual situation being

analyzed. And, while it may appear to be intellectualizing, the

criminal law is read narrowly, and, in fact, there is no crime for

writing an aggregate number of prescriptions. While a finding on

the group strongly suggests the individual prescription was incor-

rect it doesn’t necessarily follow that such was the case.

Also, it deserves mention that because the word “approxi-

mately” was used the jury in actuality didn’t even determine a

definite group of prescriptions had been wrongfully written.

OFFENSE AS DEFINED BY THE SECOND CIRCUIT

IS NOT A CRIME

The criminal offense of illega! distribution of drugs means that

the person had the intent to commit a wrongful act and, in such a

frame of mind, delivered a drug to another person. The second

circuit makes the argument that in relation to doctors, the state of

mind is irrelevant. U.S. v. Vamos, (1986) 797 F.2d 1146, U.S. v.

Sanchez-Acosta (this case; the unpublished opinion is in the

appendix). There is no such law as claimed by the Second

Circuit. No other circuit agrees with them. Because of this

conflict in the Circuits and the fundamental importance of this

issue, as it directly effects hundreds of thousands of doctors who

in turn are treating with drugs the population of the United

States, now believed to be about 250 million people, the Court

needs to review the matter. Further, an additional reason for

9

review is that the Supreme Court’s decision in U.S. v. Moore,

(1975) 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed. 333, is not being

interpreted correctly and therefore needs to be clarified.

This was used by the Second Circuit to say that what the

experts said at trial didn’t matter. Also, it appears to rationalize

jury instructions which lacked an intent requirement in relation to

the law on distribution and conscious avoidance. That isn’t the

law, however. Quite the contrary—it is presumed Congress re-

quires unlawful intent of a felony crime unless Congress explicitly

states otherwise. Liparota v. Unites States, (1985) 471 U.S. 419,

85 L.Ed. 434, 105 S.Ct. 2084. Thus, once again this judgment is

void and therefore must be vacated.

SECOND CIRCUIT COURT OF APPEALS DIDN’T FOLLOW

CORRECT LAW OF REVIEW AND THEREFORE THE CASE

MUST BE REVERSED

In addition to the obvious glossing over of the facts which was

addressed earlier in this pleading there are other errors by the

Second Circuit. It also is obvious that no attempt was made to

understand the actions of Dr. Di Bella. The Court of Appeals

automatically assumed that methaqualone (quaalude) must be a

bad drug because it was a scheduled drug and therefore every-

thing else was an obvious criminal venture. It is submitted that

while doctors are not or may not be as careful about controlled

drugs as is a lawyer’s impression that they should be, most of

them, unlike lawyers and judges are not thinking in a framework

of “cops and robbers”, but are thinking they are treating genuine

patients. Similarly, just because a drug is on a schedule, it is

submitted, that doctors would not assume there was something

wrong with it. In fact, practically all the sleeping pills and

tranquilizers are somewhere on the controlled substance sched-

ules, from I to V, and they are subject to being moved from one

schedule to another. While those facts may not have been brought

out clearly at trial, nevertheless the Court of Appeals was ex-

pected and required to evaluate the case according to law and not

jump to conclusions.

The Appeals Court relies on the assertion that all reasonable

inferences, and all issues of credibility must be resolved in favor of

the Government. However, that omits a very important rule

10

which must be applied to this case. Here, on a related charge

arising from the same set of facts, Dr. Di Bella was acquitted of a

conspiracy. Arguably, this means that the underlying, substantive

charges—the distribution counts—ought to be vacated. In fact,

this is particularly true in light of how the substantive charges are

phrased so that it is a group of prescriptions rather than an

individual act. At the very least, the law requires the rule that

when an inconsistency appears in the verdict a reviewing court

“should be extraordinarily careful to scrutinize the record for the

ascertainment of any prejudicial error”. Manley v. United States,

238 F.2d 221 (1956). That wasn’t done and therefore the case

must be reviewed in accord with the Supreme Court’s supervisory

capacity.

This failure to make a meaningful analysis is confirmed by a

quick reading of the Reply Brief by Dr. Di Bella and the Court’s

opinion—many issues simply were left unanswered. For example:

1. statistical evidence, such as proof by percentages,

should not have been allowed to serve as “the” proof;

2. a standard of conduct which is within the scope of

medical practice (a means of comparison) was not estab-

lished by Expert witnesses.

3. the conscious avoidance instruction was improper to

give and also incorrectly given.

4. the aiding and abetting instruction was improper to

give.

SECOND CIRCUIT COURT OF APPEALS DIDN’T SUFFI-

CIENTLY REVIEW SECTION 2255-HABEAS CORPUS BRIEF

Similar to their lack of analysis of the Appeliant’s original

appeal, the Court of Appeals for the Second Circuit failed to

adequately review the challenge to the legality of the proceedings

filed by the Appellant on his’ own behalf. This was his brief

authorized by the principles of Habeas Corpus and 28 U.S.C.

2255.

This was a thorough analysis of ineffective assistance of coun-

sel. Even though he was criticizing this writer, this writer must

admit it states a prima facie case and there should have been a

el

1]

hearing ordered on the matter, as is required by 22 U.S.C. 2255.

One of the major points that was made was that a proper

investigation was not made into a mental defense. This is required

by the Fifth Circuit, Beavers v. Belkcam, (1981) 636 F.2d 114

and thus a conflict exists with the Second Circuit.

A second point was that he did not know that a potential

entrapment defense may have been available and he should have

been informed of that. The Second Circuit’s failure to act puts it

in direct conflict with the Fifth Circuit. United States v. Green-

field, 554 F.2d 179, 54 A.L.R. Fed. 632.

Undoubtedly, the effect of the cumulative errors of this case

even if a single one may not be sufficient is cause for reversal of

this case.

CONCLUSION

Wherefore, it is requested that a Petition for Certiorari issue so

that the actions of the lower courts may be reviewed, the illegal

judgment be vacated, and the Appellant Geoffrey Di Bella be

released from control of the United States, and for such other and

further relief as the Court may find appropriate.

Respectfully submitted,

NIicoLas M. W. D1 BELLA

March, 1989

a

ok

Appendix A

United States District Court

Southern District of New York

Geoffrey A. W. Di Bella, M.D., et al.

(including G. A. W. Di Bella,

Petitioner,

against

United States of America,

Respondent.

87 Civ. 8764 (GLG)

ORDER

The petitioner moves to vacate his conviction in 1985 of two

counts of unlawful distribution of methaqualone in violation of

Title 21 U.S.C. §§ 812 and 841. Following the conviction, he

appealed unsuccessfully. He thereafter commenced serving a two-

year term of imprisonment which he continues to serve.

The petitioner alleges that there was a “complete miscarriage

of justice” in his conviction. He was one of a number of defend-

ants, including a handful of doctors charged with running

“quaalude” clinics. In addition to being a licensed medical doctor,

he was also a qualified psychiatrist. The evidence at trial clearly

established, with respect to the petitioner, that he wrote 771

prescriptions for quaaludes in 27 working days and as many as 96

in a single day. Patients would come in to see him, spend five

minutes, pay $200.00 in cash, and he would then present them

with their desired prescription for the controlled substance. He

turned away only one patient in 100. The rest paid their money

and got their drugs.

In arguing that his conviction was a miscarriage of justice, he

contends that his attorney (his brother) prevented him from or

failed to establish that because of his emotions and personality he

could not have had a criminal intent. As he describes it in his

petition, “my immaturities involved the medical diseases of

Bulemia and Avoidant and Compulsive Personality Disorders.

Part of the manifestation of these diseases include a severe

A-2

naivete, literal-kindedness, severe interpersonal awkwardness, and

poor ability to judge many aspects of reality.”

One of the goals of psychiatry is to have patients confront the

consequences of their own actions. This doctor-psychiatrist has

been unable to do that. While he and the other doctors attempted

to argue to the jury that they thought these drug users were

legitimate patients in need of prescriptions, and that they saw

nothing unusual in having so many patients with the same illness

in need of the same drug, the jury quickly disposed of that

contention. The fact that the “patients” laid out over $150,000.00

for petitioner’s prescriptions in a period of 27 days clearly gave the

transactions a commercial overtone.

This petitioner, who still refers to himself as doctor (apparently

his license to practice medicine has not been revoked), not only

violated the law but made a mockery of the Hippocratic oath in

his sworn duty not to do harm to his patients. That his time in jail

has not led to an acceptance of his responsibility is indeed sad.

The conditions of which he claims to have suffered during his

period of criminal activity would not, under any circumstances, be

a defense to the charges against him in light of the overwhelming

proof.

A-3

The petitioner raises a number of other issues which, as noted

in this court’s order of December 16, 1987, were either frivolous,

raised on appeal or waived by failure to raise them. In addition,

there is another issue which was decided on the appeal of a co-

defendant (severance). We have considered all of the grounds

urged by the petitioner, including the frivolous claim that he was

entrapped into illegal activity by the failure of the Government to

prosecute similar violators, and dismiss his petition as being

meritless.

SO ORDERED

Dated: White Plains, N.Y

April 4, 1988

GERARD L. GOETTEIL

Gerard L. Goettel

U.S.D.J

A-4

Appendix B

United States Court of Appeals

for the

Second Circuit

At a stated term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse, in the City

of New York, on the twenty-first day of December, one thousand

nine hundred and eighty-eight.

Docket Number 88-2225

Geoffrey A.W. Di Bella, M.D.

(including G.A.W. Di Bella),

Plaintiff-Appellant,

Vv

United States of America,

Defendant-Appellee.

[Filed Dec. 21, 1988]

A petition for rehearing containing a suggestion that the action

be reheard in banc having been filed herein by Appellant Di Bella

Upon consideration by the panel that heard the appeal, it is

Ordered that said petition for rehearing is DENIED

It is further noted that the suggestion for rehearing in banc has

been transmitted to the judges of the court in regular active

service and to any other judge that heard the appeal and that no

such judge has requested that a vote be taken thereon.

ELAINE B. GOLDSMITH

Cierk

by /s/ Fred Cassidy

Deputy Clerk

A-5

United States Court of Appeals

for the Second Circuit

At a stated Term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse in the City

of New York, on the 20th day of October, one thousand nine

hundred and eighty-eight.

Present: Honorable Ellsworth A. Van Graafeiland, Honorable

Richard J. Cardamone, Honorable Lawrence W. Pierce, Circuit

Judges

Geoffrey A. W. Di Bella, M.D

(including G.A.W. Di Bella),

Plaintiff-Appellant,

against

United States of America,

Defendant-Appellee

ORDER

Docket No. 88-2225

[Filed Oct. 20, 1988]

Geoffrey Di Bella, pro se, appeals from an order entered on

April 4, 1988 in the United States District Court for the Southern

District of New York (Goettel, J.), which denied his habeas

corpus petition filed pursuant to 28 U.S.C. § 2255.

On March 14, 1985 appellant was charged with conspiracy to

distribute a controlled substance outside the scope of professional

medical practice, in violation of 21 U.S.C. § 846, and with the

unlawful distribution of a controlled substance (methaqualone,

sold under the trade name “Quaalude’’), in violation of 21 U.S.C

§ 841(a)(1). Following a jury tral, he was found guilty in

violation of the unlawful distribution charge, but was acquitted of

distributing outside the scope of medical practice. We affirmed

the conviction, United States v. Di Bella, Dkt. No. 86-1224 (2d

A-6

Cir. Nov. 19, 1986), cert. denied, 107 S. Ct. 3184 (1987), and his

petition for a writ of certioram was denied on June 8, 1987. Di

Bella v. United States, 107 S. Ct. 3184 (1987). Throughout

these proceedings, Di Bella was represented by counsel!

The principal thrust of appellant’s petition is that his convict

was a “complete miscarriage of justice” because his attorney

failed to establish that his emotions and personality were inconsis-

tent with criminal intent, and that his tral should have been

severed from that of his co-defendants.

Dec. 29. 1988

Issued as mandate

We afhrm the denial of the habeas petition for the reasons

states in Judge Goettel’s careful opinion dated Apnil 4, 1988

The order of the district court is affirmed

s/ ELLSWORTH A. VAN GRAAFEILAND

Ellsworth A. Van Graafeiland, U.S.C.J

s/ RICHARD J. CARDAMONE

Richard J. Cardamone, U.S.C.J

s/ LAWRENCE W. PIERCE

Lawrence W. Pierce, U.S.C.J

A.7

Appendix C

The pertinent part of 21 U.S.C. 841 is

(a) Except as authorized by this subchapter, it shall be unlaw-

ful for any person to knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled

substance;

The pertinent part of 21 U.S.C. 822

(b) Persons registered by the Attorney General under this

subchapter to manufacture, distribute, or dispense controlled

substances are authorized to possess, manufacture, distribute, or

dispense such substances (including any such activity in the

conduct of research) to the extent authorized by their registration

and in conformity with the other provisions of this subchapter

The pertinent parts of 21 U.S.C. 802 are:

(8) the terms “deliver” or “delivery” mean the actual, con-

structive, or attempted transfer of a controlled substance, whether

or not there exists an agency relationship.

(10) the term “dispense” means to deliver a controlled sub-

stance to an ultimate user or research subject by, or pursuant to

the lawful order of, a practitioner, including the prescribing and

administering of a controlled substance and the packaging, label-

ing Or compounding necessary to prepare the substance for such

delivery. The term “dispenser” means a practitioner who so

delivers a controlled substance to an ultimate user or research

subject

(11) The term “distribute” means to deliver (other than by

administering or dispensing) a controlled substance. The term

“distributor” means a person who so delivers a controlled

substance

(20) The term, “practitioner” mean a physician, dentist, veter-

inarian, scientific investigator, pharmacy, hospital or other person

permitted, by the United States to distribute, dispense,

conduct research with respect to, administer, or use in teaching or

A-8

chemical analysis, a controlled substance in the course of profes-

sional practice or research.

(21) The term “ultimate user” means a person who has

lawfully obtained, and who possesses, a controlled substance for

his own use or for the use of a member of his household or for an

animal owned by him or by a member of his household.

A-9

Appendix D

COUNT EIGHT

The Grand Jury further charges:

Between on or about November 10, 1981, and on or about

February 18, 1982, at the 34th Street Clinic in the Southern

District of New York, DR. GEOFFREY Di BELLA, the defen-

dant, unlawfully, intentionally and knowingly did cause to be

distributed and dispensed, outside the scope of professional medi-

cal practice, approximately 33,240 dosage units of Quaalude

(Methaqualone), a Schedule II (now a Schedule I) controlled

drug substance.

(Title 21, United States Code, Section 812, 841(a)(1),

841(b)(1)(B) prior to amendment on October 12, 1984, by

Public Law Number 98-473, Title 11, Section 502; Title 18,

United States Code, Section 2).

COUNT NINE

The Grand Jury further charges:

Between on or about March 1, 1982, and on or about June 30,

1982, at 60 East 42nd Street, New York, New York in the

Southern District of New York, DR. GEOFFREY Di BELLA,

the defendant, unlawfully, intentionally and knowingly did cause

to be distributed and dispensed, outside the scope of professional

medical practice, approximately 5812 dosage units of Quaalude

(Methaqualone), a Schedule II (later a Schedule I) controlled

drug substance.

(Title 21, United States Code, Section 812, 841(a)(1),

841(0)(1)(B) prior to amendment on October 12, 1984, by

Public Law Number 98-473, Title 11, Section 502; Title 18,

United States Code, Section 2).

A-10

Appendix E

United States Court of Appeals

for the Second Circuit

At a stated term of the United States Court of Appeals for the

Second Circuit, held in the United States Courthouse in the City

of New York on the 19th day of November, one thousand nine

hundred and eighty-six.

Present:

Hon. Ellsworth A. Van Graafeiland,

Hon. Lawrence W. Pierce, Circuit Judges,

Hon. Morris E. Lasker, District Judez.*

86-1224, 86-1303, 86-1342

United States of America,

Appellee,

VS.

Dr. Manuel Sanchez-Acosta, Dr. Geoffrey Di Bella,

and Dr. Irving Greenfarb,

Defendants-Appellants

ORDER

[Filed Nov. 19, 1986]

Appeal from judgments of conviction in the United States

District Court for the Southern District of New York (Goettel,

J.). Appellants Sanchez-Acosta, Di Bella, and Greenfarb were

convicted of the illegal distribution of methaqualone (more com-

monly known by its trade name, “Quaalude”’) in violation of 21

U.S.C. §§ 812, 841(a)(1) & 841(b)(1)(B). Appellant Green-

farb was also convicted of conspiring to violate federal narcotics

laws under 21 U.S.C. § 846.

* Hon. Morris E. Lasker, Senior Judge, United States District Court

for the Southern District of New York, sitting by designation.

A-11

1. Appellants allege that there was insufficient evidence to

establish that they were dispensing medication in bad faith.

Appellants contend that in their best judgment they believed that

their patients were suffering from sleep disorders and that

Quaalude was the proper remedial medication. Appellants also

allege that they were practicing in good faith because they were

advised by competent counsel that their activities were legitimate.

When reviewing the sufficiency of the evidence, we must draw

all reasonable inferences, and resolve all issues of credibility in

favor of the Government. Glasser v. United States, 315 U.S. 60,

80 (1942); United States v. Martino, 759 F.2d 998, 1002 (2d Cir.

1985). The totality of the evidence adduced at trial clearly

supports the jury’s verdicts of guilt in this case. Each of the

defendants wrote Quaalude prescriptions for more than 95% of

their patients; patient examinations were very brief (usually

lasting only five minutes), while the fees were quite high ($150 to

$200 per visit); and further, expert testimony indicated that the

medical operation was a sham. The evidence was therefore

sufficient to support the verdicts.

2. Apropos appellants’ argument that the prosecutor’s mis-

conduct deprived them of a fair trial, a criminal conviction will

not be overturned on review unless the prosecutor’s misconduct

caused substantial prejudice to the defendants in the case. United

States v. Biasucci, 786 F.2d 504, 514 (2d Cir.) (citations omit-

ted), cert. denied, 107 S. Ct. 104 (1986). Here, appellants

basically rely on two incidents to support their claim of

prosecutorial misconduct. One, an altercation between the prose-

cutor and defense counsel, occurred outside the presence of the

jury and therefore could not have resulted in prejudice. The

second involved a remark before the jury, made on the first day of

the month-long trial, which could be interpreted as inferring that

defendant Gourji’s attorney could be indicted. (Gourji did not

appeal.) The prosecutor said: “You are not a defendant yet, sir.”

The district court immediately struck the remark from the record

and chastised the prosecutor, the prosecutor apologized twice for

the comment, and thereafter the district court cautioned the jury

to disregard the remark. These actions eliminated any substantial

A-12

prejudice to the defendants. See United States v. Bagaric, 706

F.2d 42, 58 (2d Cir.), cert. denied, 464 U.S. 840 (1983).

Although we find that the prosecutor’s actions did not result in

substantial prejudice to appellants so as to deprive them of a fair

trial, we agree that the prosecutor’s outbursts and conduct were

highly improper and inappropriate. Accordingly, we direct that

the record herein be forwarded to the Committee on Grievances

of the United States District Court for the Southern District of

New York for its review of the prosecutor’s conduct and for

whatever action it finds to be warranted.

3. Appellants also allege that the district judge’s questioning

of a defense expert witness deprived them of a fair trial. Federal

Rule of Evidence 614(b) specifically authorizes a trial court to

“interrogate a witness, whether called by itself or a party.”

Indeed, a trial judge has the responsibility to assist the jury in

determining the truth. United States v. Bronston, 658 F.2d 920,

930 (2d Cir. 1981), cert. denied, 456 U.S. 915 (1982). A

conviction should be reversed only when the trial judge’s conduct

was so partial to the prosecution that it became a factor in

determining the defendant’s guilt. United States v. Pisani, 773

F.2d 397, 402 (2d Cir. 1985) (citations omitted). In this case,

Judge Goettel questioned the expert witnesses of the Government

as well as those of the defense. The record indicates that the trial

court’s questions were designed to amplify and clarify the state-

ments of the experts. While Judge Goettel may have expressed

doubt as to the defense expert’s testimony in the presence of the

attorneys, no such opinion was expressed before the jury. Finally,

the district court instructed the jury that it should not assume that

the court had an opinion about the case merely because it asked

questions. Thus, we hold that the appellants were not denied a fair

trial.

4. Finally, appellants argue that, by allowing expert witnesses

to express an opinion concerning whether the defendants engaged

in a good faith medical practice, the district court violated Federal

Rule of Evidence 704(b) because, appellants urge, such testi-

mony would address “the mental state or condition of a defen-

dant.”” However, this Court has recently made clear that “good

faith medical practice” in the context of the federal narcotics laws

Si

A-13

is determined by objective standards and does not involve a

defendant’s subjective state of mind. United States v. Vamos, 797

F.2d 1146, 1152-53 (2d Cir. 1986). Since the expert witnesses

here merely expressed their opinion that the medical practice of

defendants did not conform to reasonable good faith standards,

Federal Rule of Evidence 704(b) was not violated. Even if it was,

the abundance of other evidence in this case would render a

violation of 704/b) harmless error.

We have considered the other contentions of the appellants and

find them to be without merit. Accordingly, we affirm the judg-

ments of conviction.

/s/ ELLSWORTH A. VAN GRAAFEILAND

Hon. Ellsworth A. Van Graafeiland

/s/ LAWRENCE W. PIERCE

Hon. Lawrence W. Pierce

/s/ MORRIS E. LASKER

Hon. Morris E. Lasker,

District Judge

N.B.: Since this statement does not constitute a formal opin-

ion of this court and is not uniformly available to all parties, it

shall not be reported, cited or otherwise used in unrelated cases

before this or any other court.