Opposition — Fisher v. United States

=e ; , Supreme Court, U. S. |

~W FILED

FEB 16 1977

No. 76-913

MICHAEL RODAK, JR., CLERK |

In the Supreme Court of the United States

OCTOBER TERM, 1976

WILLIAM FISHER, M.D., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DANIEL M. FRIEDMAN,

Acting Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

JEROME M. Feit,

JAMES A. HUNOLT,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-913

WILLIAM FISHER, M.D., PETITIONER

; Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The order of the court of appeals (Pet. App. A) is noted

at 540 F. 2d 1083.

JURISDICTION

The judgment of the court of appeals was entered

on September 29, 1976. A petition for rehearing with

suggestion of rehearing en banc was denied on December

1, 1976 (Pet. App. B). The petition for a writ of certio-

rari was filed on December 31, 1976. The jurisdiction of

this court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether the prosecutor improperly failed to

inform petitioner of evidence allegedly relevant to the

credibility of a government witness.

2. Whether 21 U.S.C. 841(a)(1) is unconstitutionally

vague.

(1)

2

STATEMENT

After a jury trial in the United States District Court

for the Eastern District of Louisiana, petitioner was con-

victed of 23 counts charging distribution of controlled

substances, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C.

2. He was sentenced to concurrent terms of three years’

imprisonment, with all but 60 days of the term suspended in

favor of 34 months’ supervisory probation, to be followed

by two years’ special parole pursuant to 21 U.S.C. 841(b)

(1)(B). He was also fined $10,000 on each of the first five

counts. Petitioner was further ordered to close his office and

surrender his license to practice medicine as well as his

narcotics permit.

After petitioner’s conviction, he made a motion for

a new trial based upon the alleged failure of the United

States to disclose information relevant to the credibility

of one of its witnesses. Following a hearing,' the district

court denied the motion (Pet. App. 3a). The court of ap-

peals affirmed per curiam (Pet. App. la).

Briefly, the evidence at trial showed that between

April 2, 1974, and June 18, 1974, petitioner wrote 23

prescriptions for various amphetamines and other con-

trolled substances (e.g., Tr. 141-146, 184-187, 209-210).

The prescriptions were requested by three undercover

agents of the Drug Enforcement Administration. The

agents, who met separately with petitioner, stated

initially that they wanted drugs to stay awake, go to sleep,

or for friends (e.g., Tr. 142-144, 185, 209-210). Petitioner

conducted cursory physical examinations of the agents,

measuring only their height, weight, and blood pressure

(Tr. 143, 187, 210). After the initial office visits, petitioner

'We are lodging a transcript of the hearing on the motion for a new

trial (“Hearing Tr.”) with the Clerk of this Court.

made no further physical examinations (Tr. 157, 195-196,

217). The agents were not asked about their health, nor

did they state that they were suffering from any illness

(Tr. 157-158, 196, 217-218).

Two expert witnesses, Dr. John Andrianni and Dr.

George Bailey, testified that petitioner prescribed a

substantially greater quantity of drugs during the period

involved than could be used for any legitimate medical

purposes (Tr. 257-258, 270-272, 278, 338-340, 345-346). In

their opinion, petitioner’s conduct fell outside legitimate

medical practice (Tr. 248-279, 334-351, 357). Two doctors

testified as experts on petitioner’s behalf that petit-

tioner’s conduct was within the course of professional

practice (Tr. 380-384, 437-438, 447-449).

ARGUMENT

1. Petitioner claims (Pet. 10-12) that the prosecutor

improperly failed to disclose evidence affecting the credi-

bility of one of its expert witnesses, Dr. Bailey. Prior

to petitioner's trial, Bailey was the victim in a land fraud

scheme for which one Robert Pilotte was federally pros-

ecuted in the Eastern District of Louisiana. Pilotte had

informed Bailey that he would make restitution of the

amount defrauded, if the fraud charges were dismissed.

Bailey communicated that information to Assistant

United States Attorney James O'Connor, who informed

Bailey that the prosecution would not be dismissed.

Shortly thereafter, Bailey was contacted with regard to

his testimony in the present case, which was prosecuted

by Assistant United States Attorney Ronald Fonseca.

Pilotte pleaded guilty to the fraud charges more than two

weeks prior to petitioner’s trial and was sentenced to

a term of 30 months’ imprisonment. United States v.

Pilotte, No. 74-393(D) (E.D. La.), filed July 14, 1975.

Petitioner claims that Dr. Bailey had an interest in

testifying favorably for the government in the hope of

4

influencing the United States Attorney's decision-making

in Pilotte’s case. Petitioner's factual claim is without

substance. Pilotte’s offer to Bailey depended upon dis-

missal of the fraud charges (Hearing Tr. 14). Not only were

the charges not dismissed, but Pilotte pleaded guilty prior

to petitioner's trial. Whatever interest Bailey might have

had in pleasing the prosecutors expired weeks before he

testified against petitioner. Because the Pilotte mat-

ter could not have been affected by Bailey’s testimony,

the prosecutor had no duty to disclose Bailey’s dealings

with Pilotte, which did not constitute material exculpa-

tory evidence. See United States v. Agurs, No. 75-491,

decided June 24, 1976; Brady v. Maryland, 373 U.S. 83,

87.

For the first time, petitioner now claims (Pet. 8, I1)

that Pilotte made an additional offer to Bailey that resti-

tution would be made if Bailey persuaded the United

States Attorney to recommend probation for Pilotte.

Petitioner argues that Giglio v. United States, 405 U.S.

150, required the United States Attorney to disclose this

interest. We are unable, however, to find any evidence

in the record supporting petitioner’s present description

of Pilotte’s offer to Bailey, and petitioner cites nothing.

In fact, at the post-trial hearing into this matter (when

Bailey apparently was available and could have been,

but was not, called to testify regarding the subject) peti-

tioner’s counsel proposed a stipulation regarding Bailey's

testimony to the effect that Pilotte told Bailey “that if

Dr. Baley [sic] exerted his influence on the U.S. Attor-

ney’s Office to drop the charges Mr. Pillot [sic] would make

restitution” (Hearing Tr. 15). There was no suggestion that

Pilotte was continuing to exert pressure on Bailey to

intervene with the prosecutors at the time of petitioner's

trial, when Pilotte already stood convicted, or that his

pressure ever extended to matters of sentencing, or, if

‘5

it did, that the prosecutors were aware of that fact. Thus,

there is plainly no basis for review of this unsubstantiated

claim in this Court.

Moreover, while the matter would of course be one for

determination by the district court in the first instance, it is

hard to see how petitioner would oe entitled to a new trial

even if his present factua! assertions could be substantiated.

Unlike Giglio, this case involved no false testimony of any

kind by the prosecution's witness, Dr. Bailey. And Bailey's

testimony, while no doubt of importance, was not critical to

the government's case, as was that of the witness in Giglio.

The facts of the drug distributions were established by the

testimony of the narcotics agents involved, and Bailey's

expert opinion testimony was duplicated by that of another

expert medical witness. Under the circumstances, it is

difficult to see how the petitioner's speculations about the

marginally impeaching information regarding dealings be-

tween Pilotte and Bailey could be found to create “a

reasonable doubt that did not otherwise exist.” United

States v. Agurs, supra, slip op. 15.

2. Petitioner further alleges that Sectio:. 401(a)(1) of the

Controlled Substances Act, 84 Stat. 1242, 1260, 21 U.S.C.

841(a)(1), is unconstitutionally vague when applied to

registered physicians. He urges that the statute does not give

notice to a physician as to which conduct will fall outside

“the course of professional practice.” 21 U.S.C. 802(20). The

claim, however, is merely “another statement of * * * [the]

contention that Congress did not intend that doctors

registered under [the Controlled Substances Act] * * *

should be punished under Section 841.” United States v.

Rosenberg, 515 F. 2d 190, 193 (C.A. 9), certiorari denied,

423 U.S. 1031. This issue was resolved adversely to

petitioner's position by this Court in United States v.

Moore, 423 U.S. 122, and no reason exists to reconsider that

decision now.

6

In any event, the requirement that registered doctors

prescribe drugs only in the course of legitimate medical

practice is not impermissibly vague. United States v.

Rosenberg, supra, 515 F. 2d at 197-198; United States v.

Collier, 478 F. 2d 268, 271-272 (C.A. 5). Whether particular

treatments fall within the “course of professional prac-

tice” is a judgment routinely required of physicians. See

Doe v. Bolton, 410 U.S. 179, 191-192; United States v.

Vuitch, 402 U.S. 62, 71-72.

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

DANIEL M. FRIEDMAN,

Acting Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. FEIT,

James A. HUNOLT,

Attorneys.

FEBRUARY 1977.

DOJ-1977-02