Petition — Kershman v. United States

Supreme Coust, us

ae ee

AUG 9 1977

IN THE MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

’ a

OCTOBER TERM, 1977

no. BI" 29%

BERNARD KERSHMAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

THEODORE F. SCHWARTZ

7701 Forsyth Suite 560

Clayton, Missouri 63105

Attorney for Petitioner

INDEX UNITED STATES v. OLIVARES-VEGA, 495 F 2d 827

| a= ——-)0)—S—SO— i ‘(<C<;373;73;C; U

UNITED STATES v. THOMPSON-HAYWARD CHEMICAL CO.,

Sn rn 4° 2 be. @ eo See eS ee t Ze

2

Jurisdiction ..s«seeseseetceveveds

Questions Presented .....++-+++-e2

Statement ee oe oe a ee a or ee ae oe i a

Reasons for granting the writ ...... 6

Conclusion ee 0 6 6 6 6 3 8 0 6 6 6 & BO

Appendix A - Opinion of Court of Appeals 55

Appendix B - Judgment of Court of

Appeals filed June 28, 1977 67

Appendix C - Denial of Stay of Mandate. . 68

Appendix D = Order Denying Petition for

Rehearing.:. © . <a:

Appendix E - Order Extending Time to File . . 70

CASES CITED

AGUILAR v. TEXAS, 378 U.S. 108, 12 L Ed 2d 84

S. Ct. 1509 (1964)

GALLO v. UNITED STATES, 343 F 2d 361, 1976

KRULEWITCH v. UNITED STATES, 336 U.S. 440 93

LUTWAK v. UNITED STATES, 344 U.S. 604, 97 L Ed

, . t.

SPINELLI v. UNITED STATES, 393 U.S. 410, 21 L Ed

, » Ct.

UNITED STATES v. BRIGHT, 517 F 2d 584, 586-87

Le )

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

BERNARD KERSHMAN,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

BERNARD KERSHMAN, your petitioner,

respectfully prays that a Writ of Certiorari

-l-

be issued to review the judgment of the United

States Court of Appeals for the Eighth Circuit

entered in the above entitled cause on May 18,

1977.

OPINION BELOW

The cause was argued before a division of the

United States Court of Appeals for the Eighth

Circuit. The division rendered its judgment

affirming the judgment of the district court, May

18, 1977.

JURISDICTION

The judgment of the United States Court

of Appeals was entered on June 10, 1977, and

filed in the District Court on June 28, 1977.

The jurisdiction of this is invoked under

28 usc $1254(1).

STATEMENT OF QUESTIONS PRESENTED

I.

The Court Brred In That Portion Of The

Instructions Hereinafter Set Forth For The

Reasons That Said Instructions Changed The Standard |

Of Guilt From That Of A Reasonable Noust To That

Of A Reasonable, Prudent Man's Standard and

Vitiates The Burden Of Proof Instruction And .

The Reasonable Doubt Instruction And Assumes

Facts Not In Evidence.

Il.

A.

The Court Erred In Admitting Into Evidence

Government's Exhibits 1 Through 177 For The

Reason That Said Evidence Was Seized Pursuant

To A Search Warrant That Was Issued Fixed Upon

A Defective Affidavit For The Reason That Said

Affidavit Lacked Probable Cause.

B.

The Court Erred In Overruling Defendant's .

Motion To Quash Said Search Warrant For The

Reason That Said Warrant Was Issued Upon An

Affidavit That Lacked Probable Cause.

'

if

-

x

«

Iit.

The Court Erred In Allowing Witness, Detective

Becker, To Testify To An Out Of Court Declaration

Made by Co-Defendant Smith For The Reason That

Said Statement Was Made After The Conspiracy

Had Come To An End And Not Made In Furtherance

Of Said Conspiracy. -

IV.

The Court Erred In Overruling Defendant's

Motion For Mistrial After Rebuttal Witness

Candice Wilson Testified That “She Didn't Want

To Get Involved In Something Like This" And That

She Did Not Like The Way He (Defendant) Was

Conducting His Pharmacy For The Reason That Said

Statements Were Highly Prejudicial And Inferred

That Defendant Was Committing Other Illegal Acts

And Said Statement Constituted Improper Rebuttal

Testimony.

STATEMENT OF THE CASE

On September 16, 1976, an indictment was filed

-4-

against defendant and three other persons. The

case was assigned to the Honorable John K. Regan,

United States District Judge. A severance was

granted to defendant, Bernard Kershman, and the

case proceeded to trial with the three counts,

Count I, Count 12 and Count 16, against Bernard

Kershman. On October 29, 1976, a jury returned

a verdict of guilty on each count. On November |

5, 1976, defendant filed a timely Motion for New

Trial and same was overruled on December 9, 1976.

On December 9, 1976, defendant filed his Notice

of Appeal to the United States Court of Appeals

for the Eighth Circuit in the United States District

Court for the Eastern District of Missouri. The

defendant has appealed from a conviction of Title

18, Section 846 and Title 18, Section 841 (a) (1)

and from the judgment and sentence entered in

accordance with Title 18, Section 4205(c) as

described in 18 U.S.C., Section 4205(d).

The appellant was charged with a violation

of 841 (a)(1) Title 21, United States Code and

Section 846, Title 21, United States Code.

REASONS FOR GRANTING THE WRIT

I.

The Court Erred In That Portion Of the

Instructions Hereinafter Set Forth For The

Reasons That Said Instructions Changed The

Standard Of Guilt From That Of A Reasonable

Doubt Te That Of Reasonable, Prudent Man's

Standard And Vitiates The Burden Of Proof

Instruction And The Reasonable Doubt Instruction

And Assumes Facts Not In Evidence.

The Court instructed the Jury that the

jury could find the-defendant acted knowingly

if defendant "closed his eyes" to certain facts

and engaged in "studied avoidance" of the facts.

The instruction was as follows:

"In this connection, you are further

instructed that if you find that the

prescriptions for dilaudid which defendant

filled and which are involved in Counts 12

and 16 were not issued for a legitimate medic

purpose by a physician during the usual

course of his professional practice and that

under the facts and circumstances known to

him defendant had every reason to believe

that such purported prescriptions had not

been issued for a legitimate medical

purpose, and that defendant deliberately

and consciously closed his eyes to what he

had every reason to believe was the fact,

-6-

such studied avoidance of positive knowledge

is a circumstance from which you may reasonably

draw the inference and find, in the light

of the surrounding circumstances shown by

the evidence in this case, that defendant

knew that such purported prescriptions

had not been issued for a legitimate medical

purpose, and hence were knowingly filled

by him.

It is the exclusive province of the

jury to determine whether the facts and

circumstances shown by the evidence warrant

such inference.

You are further instructed that a licensed

pharmacist who fills a prescription for a

controlled substance is excepted from

criminal responsibility from dispensing the

controlled substance if he believes in good

faith that such prescription was issued and

prescribed for a legitimate medical purpose

by a physician acting in the usual course of

his professional practice. However, an

order which purports to be a prescription

for a controlled substance but which was

not issued in the usual course of professional

treatment is not a prescription within the

meaning of the law, so that a pharmacist who

knowingly fills such a purported prescription

is not excused from the consequences of

having distributed the controlled substance

merely by reason of his being a licensed

pharmacist. Whether the pharmacist has

knowingly filled such a purported prescrip-

tion may be proved by circumstantial

evidence."

Defendant objected to the instruction as

follows:

MR. SCHWARTZ: No, Your Honor.

Defendant will object to the instruction

beginning in this connection, you are

further instructed that if you find that the

ee ieee deo

prescriptions for Dilaudid which defendant

filled and which are involved in Counts

XII and XVI were not issued for a legitimate

medical purpose by a physician during the

usual course of his professional practice

and that under the facts and circumstances

known to him defendant had every reason to

believe that such purported prescriptions

had not been issued for a legitimate medical

purpose, and that defendant deliberately and

consciously closed his eyes to what he had

every reason to believe was the fact, such

studied avoidance of positive knowledge is a

circumstance from which you may reasonably

draw the inference and find, in the light of

the surrounding defendant knew that such

purported prescriptions had not been issued

for a legitimate medical purpose, and that.

defendant had deliberately and consciously

closed his eyes to what he had every reason

to believe was the fact, such studied

avoidance of positive knowledge is a

circumstance from which you may reasonably

draw the inference and find, in the light of

this case, that defendant knew that such

purported prescriptions had not been knowingl

filled by him. It is the exclusive province

of the Jury to determine whether the facts

and circumstances as shown by the evidence

warrants such inference. The defendant will

object to that on one ground, Your Honor,

that it changes the standard to which a

person is judged to one of proof beyond a

reasonable doubt to a reasonable prudent

man's standard. I think it vitiates the

burden of proof instruction and reasonable

doubt instruction.

THE COURT: Well, I have already

stated my reason for giving it.

What about your position instruction?

MR. SCHWARTZ: Judge, my other objection

to the instruction that I just objected to

was that it is - - it assumes facts that

iM cian

a every reason to believe was s

have not been in evidence as to whether

there is not proof that the prescriptions

were not issued for legitimate medical pur- ,

poses. ’ ’ ID. at 830 n. 11, citing United States v. Joly,

493 F. 2d -

THE COURT: Those are circumstances ‘ 672, 674-76 (24 Cir. 1974). The

under which the other evidence goes. instruction in the case at bar lacks a finding

These things are to be read as a whole.

that th " .

MR. SCHWARTZ: It makes a comment that e defendant "deliberately closed his eyes".

such studied avoidance of positive knowledge ' The instructi

and I think that assumes a fact not in on in the case at bar comments that

evidence and as it states that it is a fact there is in fact "such studied avoida

nce".

by stating that such studied avoidance and

' ' i

I don't think there's any evidence of any "Deliberate ignorance" instructions

Svatses evescanes. ae rao in prosecutions under

’ , statutes prohibiting " ing"

THE COURT: It will be overruled. conduct by the ale of eens AM gee ee

, ‘ Second i

We will put the good faith in here. In many jaake eau eet ne <n a

reviewing the sufficiency of evid

ence have

. approved ™ i a

In United States v. Olivares-Vega, 495 F 2d criminal ventions ia bee hémbtas Ee seethtes

knowledge, but includes the state of mind

of one who does not possess iti

positive knowl

Only because he consciously avoided it. —

827 (2d Cir. 1974) the Court held that the

element of knowledge in a criminal offense can These lines of authority appear unbrok

; Neither th roken.

be supplied not only by evidence of actual ei tien Sette tae aited 0 ante midi iad

such an i ;

awareness, but by a "deliberate choice not to evidence is dee hattieiene te nent

: s

; "knowledge".

learn for the very purpose to assert his ignorance." ”

United States v. Jewell, 532 F 2d 697, 702-03

495 F 2a at 830 n. 10. Accordingly, the following

-

> Ny Soe Vee -

(2d Cir. 1976

portion of a charge was ueld not to be error in ), and cases cited at n. 12-14. See

also Uni

that case: ted States v. Dozier, 522 F 2d 226, 227

| (2nd Cir. 1975

In other words, you may find the ), applying the principle to

defendant acted knowingly if you find that . §841 (a).

either he actually knew he had cocaine or

that he deliberately closed his eyes to

a. 3 -10- ——wUE— <<

nevertheless, the instruction was insufficient

in not delineating that "knowledge" must be

proven, as all other elements of an offense,

beyond a reasonable doubt. See, 3.g., United

States v. Adams, 293 F. Supp. 776 (S.D.N.Y. 1968),

and authorities cited therein. Nowhere in the

instruction regarding "knowledge" is it stated

that same must be proven beyond a reasonable doubt.

Unlike the instruction in Joly, supra, the court

did not define "deliberate ignorance" as a way

of sustaining the knowledge element of the crime.

Rather, “deliberate ignorance" is set out as the

essence of the offense. (Indeed, nowhere in

the instruction is actual awareness explicitly

stated to be an element of the offense.) Because

it was not clearly conveyed by the court that

actual knowledge was required to be proved, the

jury might have believed that defendant could be

convicted not only upon the basis of "deliberately

closing his eyes to the facts", but upon negligence

in not discerning that the prescriptions were

issued for illegitimate medical purposes. In

this context the phrases used by the court, to-wit:

ia

ia

.

‘

*under the facts and circumstances known to him

defendant had every reason to believe" and

"studied avoidance of positive knowledge," could

lead a jury into the belief that the standard

was one of negligence.

This problem is particularly acute due to the

lack of an instruction telling the jury that

negligence, in itself, will not suffice for a

conviction:

The issue of knowledge was the only

issue in dispute at appellant's trial. In

all cases involving the receipt or possession

of stolen goods , the definition of the

requisite nowledge" that the goods were

stolen, required for a conviction makes the

d erence between guilt and innocence.

The test is not a technical one requiring a

grudging adherence to some abstract standard.

The standard should always embrace we

ultimate concept of mens rea. A negligent

Or a foolish person is not a criminal when

Criminal intent is an ingredient. On the

other hand, the lack of atrest proof that the

defendant knew that the goods were stolen is,

in the nature of the case, not fatal to

conviction. Circumstantial evidence may

suffice, but the jury must understand that

to convict it must find beyond a reasonable

doubt that the defendant willfully and

knowingly possessed the goods, knowing them

to have been stolen. Without that abiding

belief on the part of the jury, there should

be no conviction.

United States v. Bright, 517 F 2d 584, 586-87

{ (2d Cir. 1975) (emphasis added). See also

United States v. Natelli, 527 F 2d 311, 322-23

(24 Cir. 1975). Accordingly, most district

courts in their instructions have been careful

to clearly state to the jury that "knowledge" is

not to be gauged by a “reasonable man" standard:

While I have stated that negligence or

mistake do not constitute guilty knowledge or

intent, nevertheless, ladies and gentlemen,

you are entitled to consider in determining

whether a defendant acted with such intent

if he deliberately closed his eyes to the

obvious or to the facts that certainly would

be observed or ascertained in the course of

his accounting work or whether he recklessly

stated as facts matters of which he knew he

was ignorant.

If you find such reckless deliberate

indifference to or disregard for truth or

falsity on the part of a given defendant,

the law entitles you to infer therefrom

that that defendant wilfully and knowingly

filed or caused to be filed false financial

information of a material nature with the

S.E.C.

But such an inference, of course, must

depend upon the weight and credibility exten-

ded to the evidence of reckless and

indifferent, conduct, if any.

I repeat: Ordinary or simple negligence

or mistake alone would be insufficient

to support a finding of guilty knowledge or

willfulness or intent.

United States v. Natelli, supra, 527 F 2d at

322 n. 9.

The third element of the offense is that

the defendant knew that the Treasury Bills

had been stolen. Knowledge is not something

that you can see with the eye or touch with

the finger. It is seldom possible to prove

it by direct evidence, The government

relies largely on circumstantial evidence

in this case to establish knowledge.

In deciding whether a particular def-

endant under consideration by you knew the

bills were stolen, you should consider all

the circumstances, such as how the defendant

handled the transaction, how he conducted

himself. Do his actions betray guilty

knowledge that he was dealing with stolen

securities or are his actions those of a

duped, innocent man?

Guilty knowledge cannot be established

by demonstrating merely negligence or even

foolishness on the part of a defendant.

However, it is not necessary that the

government prove to a certainty that a

defendant knew the bills were stolen. Such

knowledge is established if the defendant

was aware of a high probability that the

bills were stolen, unless the defendant

actually believed that the bills were not

stolen.

Knowledge that the goods have been

stolen may be inferred from circumstances

that would convince a man of ordinary

intelligence that this is the fact. The

element of knowledge may be satisfied by

proof that a defendant deliberately closed

his eyes to what otherwise would have been

obvious to him.

Thus, if you find that a defendant acted

with reckless disregard of whether the bills

were stolen and with a conscious purpose

to avoid learning the truth the requirement

of knowledce would be satisfied, unless the

defendant actually believed they were not

stolen.

United States v. Jacobs, 475 F 2d 270, 287

(2a Cir. 1973), cert. denied sub nom, Lavelle

v. United States, 414 U.S. 821 (1973). What

both of these instructions do is clearly state

that "deliberate ignorance" is a way of proving

"knowledge" and that such element cannot be shown

by mere negligence. The present instruction

leaves the jury to come to its own conclusion on

both of these "questions".

In United States v. Bright, 517 F 2d 584

(2d Cir. 1975), while the instruction given to

the jury vis a vis "knowledge" was otherwise

proper, the court found reversible error in that

the charge was not "balanced":

In the main charge, the District

Judge properly charged that "before

you find the defendant guilty, you must

find beyond a reasonable doubt that she

knew the checks were stolen at the time she

possessed the checks. If you find that

the defendant did not know the checks

were stolen, then of course you must acquit

the defendant.

The court also charged, after explaining

the statutory presumption of recent possession.

see Barnes v. United States, 412 U.S. 837,

93 s.Ct. 2357, 31 L Bd 360 (1973), as

follows:

You might also find that the defendant

-15-

had the requisite knowledge if you find that

she acted with reckless disregard as to

whether the checks were stolen, but with

a conscious effort to avoid learning the

truth, even though you may find that she

was not specifically aware of the fact

which would establish the stolen character

of the checks.

This was in no way balanced by an

instruction that if the jury nevertheless

found that the defendant actually believed

that the bills were not stolen they

should acquit.

517 F 2d at 587-88 (emphasis added). (Note,

however, that in Bright, the jury, after

convening, asked for a clarification of the term

"reckless disregard". There was a colloguy with

defense counsel and the court, wherein counsel

asked for an instruction that negligence cannot

establish "knowledge". The court refused such

an instruction. The reversal was apparently

made on the basis of the failure to include

the “negligence” instruction.) Accordingly,

Bright stands for the proposition that, in the

present case, the charge could only be proper

if it informed the jury that an actual belief

by the defendant that the: prescriptions were

legitimate would be a bar to conviction. See

United States v. Bernstein, 533 F 2d 775, 796

mn. 17 (2a Cir. 1976), reaffirming Bright.

In Gallo v. United States, 343 F 2d 361,

1976, the Court reviews a similar claim.

The instruction at page 366 in part reads

"as to knowledge that the goods were stolen, this

may have been actual, or the facts and circum-

stances may have been such as would put the

defendant on notice that the goods were stolen."

The test is whether the facts and circum-

stances were such that a reasonably prudent man

would be put on notice that the goods were stolen.

An act is done knowingly, done voluntarily

and not be mistake or accident or inadvertence."

Gallo objected to this instruction as impor-

ting the “reasonable man" test. The Court

states at page 66: "There are several federal

cases which state that proof of actual knowledge

is required." In United States v. Fields, 466

F 24 119 (2d Cir. 1972), involved a conviction

under 18 U.S.C. Section 659, which has a

knowledge requirement similar to that of Section

2314. In Fields, the Court held that it was

error to instruct the jury that they could find

-l7-

the defendants "knew" that certain goods were

stolen from evidence that “tends to prove such

(knowledge) .. ." at page 120. Thereafter,

the opinion states that the Government was required

to prove that the defendants "actually knew" —

that the goods were stolen property. d." The

Court goes on to state at page 367, "Judge

Friendly's fine opinion in United States v.

Jacobs, 475 F 2d 270 Cert. 9 414 U.S.C. 21, 94

S. Ct. 131, 38 L Ed 2d 53 (1973), which relates

to Section 2314 violation, does state:

The Jurors in this case were made well

aware that they had to find either that

defendants actually knew the bills had

been stolen or had manifested by their

conduct that they were deliberately shutting

their eyes to what they had every reason

to believe to be the fact.

475 F 2d at 288 (emphasis added). The Court

goes on to state at page 367:

"As we perceive the requirement of

the statute as applied in this case,

that the accused transported the coins

knowing the same to have been stolen... .,

such element is not sufficiently proved

by

. »« « facts and circumstances such as

would or should put the defendant on

notice that the goods were stolen...

such that a reasonably prudent man would be

put on notice that the goods were stolen.

-18-

aaa ——“—i—sSSSCis

It may be true in a given case, such

as where the notice was clear and was

wilfully ignored, that evidence of such

facts may be considered by the<jury as

part of the proof that an accused possess

the requisite knowledge, but it is error

to instruct that a guilty verdict can rest

solely on facts that would or should put a

reasonably prudent man on notice. While

there may be factual situations where the

notice which the accused received was so

strong that knowledge could reasonably

be imputed therefrom, there are many other

instances where such notice would be

insufficient. What the given instruction

lacks is the statement that the notice

must be such that the jury could conclude

therefrom that the accused did know that

the goods were stolen. Unless the

instruction reaches that point, it fails

to satisfy the requirement of the statute.

At page 368:

"The instruction that was given, by

permitting a conclusion of knewledge from

facts that would put a reasonable man on

notice, stopped short of meeting the degree

of knowledge that the statute requires and

thereby imposes a lesser standard for proving

guilt than the act requires. One can con-

ceive of many instances when facts that a

reasonable man might notice as“ conveying

owledge should not be equated with proof

knowledge beyond a reasonable doubt.

What is required is that further step that

the facts and circumstances of which he is

placed on notice, and his actions with

respect thereto, are such as to permit

a conclusion that he knew the goods were

stolen.” citing cases.

In United States v. Thompson Hayward

Chemical Company, 446 F 2d 583(8th Cir. 1971),

the question before the Court was whether or

not the defendant "knowingly" failed to do

certain acts. The Court held that the instruc-

tions given failed to clearly indicate that the

Government had the burden of proving beyond

a reasonable doubt that the defendants actions

were deliberate or the result of wilfull neglect

and therefore the instruction was erroneous.

The Court stated at page 585:

"This instruction, read as a whole,

could easily give the jury the impression

that no proof of intent or willfull neglect

was necessary and that it was a situation

in which the statute imposed strict liability

"The Government must prove that the

defendant 'deliberately' or wilfully

neglected' to do the acts made necessary

by the regulation."

“There was no proof of an "illegitimate

medical purpose" or that the prescription was

"not issued in the usual course of professional

treatment". There is not sufficient evidence

from which the jury could make a factual deter-

E77

mination on these variables.

There was no proof of a "studied avoidance

__ =

of positive knowledge" hence proof of actual

knowledge was also lacking entirely.

The Court's use of "such studied avoidance"

clearly implies to the jury that there was in

fact “studied avoidance" on the part of the

defendant. The entire instructicn was highly

prejudicial to the defendant as set out in def-

endant's objection to the Court.

Il.

A.

The Court Erred In Admitting Into Evidence

Government's Exhibits 1 Through 177 For The

Reason That Said Evidence Was Seized Pursuant

To A Search Warrant That Was Issued Fixed Upon

A Defective Affidavit For The Reason That Said

Affidavit Lacked Probable Cause.

B.

The Court Erred In Overruling Defendant's

Motion to Quash Said Search Warrant For The

Reason That Said Warrant Was Issued Upon An

Affidavit That Lacked Probable Cause.

@2j<

The Affidavit upon which the Magistrate

issued its search warrant was made by Detective

Ted Zinzelmeyer and states as follows:

"The undersigned being duly sworn deposes

and says: That he has reason to believe that on

the premises known as Del Crest Plaza Pharmacy,

8416 Delmar, University City, Missouri, which

is a pharmacy located on the ground floor of an

office building, east of Highway 725 on the

south side of Delmar, the front of the office

building facing north, the pharmacy having a

glass front with a T-Shirt Shop immediately

east of the pharmacy and a lobby immeciately

west of the pharmacy, in the Eastern District of

_ there is now being concealed certain

property, namely records of purchases and sales

of Schedule II narcotic drugs controlled

substances, prescription and order forms for

Schedule II narcotic drygs, controlled substances

and the pharmacy's inventory of all Schedule II

controlled substances, which are or have been usec

as a means of commiting a violation of Title 2l,

United States Code, Section 841(a) (1).

-22-

And that the facts tending to establish the

foregding grounds for issuance of a Search

Warrant are as follows:

Affiant is a Detective with the St. Louis

County Police Department and has been so employed

for 8 years. Affiant has been assigned to the

Narcotics Section for approximately 6 years.

During the early part of the summer of

1976, the St. Louis County Narcotics Section was

advised that large quantities of narcotics and

other controlled substances were being sold

out of 605 Ellwine, Lemay, Missouri. The St.

Louis County Narcotics Section began an inves-

tigation which started off with extensive

surveillance for approximately a two week period.

This investigation revealed large numbers of

young: individuals going to the 605 Ellwine

address, staying a short while, and then leaving.

On July 1, 1976, affiant was introduced

to one of the persons staying at the house, a

Patricia Lee House, a/k/a Tricia Melton. Affiant

met Patricia House at a Velvet Freeze Ice Cream

Parlor at 2613 Telegraph Road at which time House

sold affiant 4 yellow tablets for $60.00. The

tablets later were analyzed by the St. Louis

County Police Department Laboratory and found

to be dilaudid. Dilaudid is a Schedule II

narcotic drug controlled substance which has a

high potential for abuse in that it is a substitute

for heroin, and, in fact, is preferred by many

heroin addicts in that it gives a quicker rush

or high.

Affiant made three more purchases of

controlled substances from Patricia Lee House

on July 2, 6 and 10. These sales were for

2 dilaudid tablets, 10 preludin tablets and a

bottle of liquid dilaudid which was purchased

for $200.00. During the negotiation and sale

of these three transactions, affiant discussed

with House her source for her narcotics and

attempted to learn what types of controlled

substances House would be able to deliver.

House indicated her source was Peggy Linae,

who also resided at 605 Elwine. House described

Linze as being able to deal in large quantities

of liquid dilaudid; that Linze had several

~

@24e

bottles of liquid morphine for sale. The

particular bottle of liquid dilaudid purchased

on July 10th had a label on it that read:

"Dilaudid 20cc Knoll Pharmaceutical". The seal

on the top of the bottle was still intact.

During the conversation Patricia House explained

that Peggy Linze was getting her drugs from a

man who was a pharmacist. (our emphasis) House

said the only two other persons besides Peggy

knew who the fellow was and she was one of them

as she was Peggy's number one dealer. Upon

further questioning, House stated that the other

person was a male, but refused to give out any

of the subject's names.

On July 15, 1976, affiant by-passed Patricia

House and went directly to Peggy Linze through

the use of a confidential informant. Arrangements

were made for the purchase of 20 dilaudid tablets.

On that date affiant purchased from Peggy Linze

and a Ronald Blest 20 dilaudid tablets which were

yellow with the imprint K-4 on the tablets.

Affiant has discussed this particular case

and the yellow tablets in question with Mr.

Joseph Bono who is a chemist with the St. Louis

County Police Department Laboratory, who has

advised affiant that this particular type of

tablet is a very new type of dilaudid which

just came on the market. Affiant continued

his investigation of Peggy Linze on July 16,

1976, when affiant purchased 20 dilaudid tablets

again at the reduced price of $12.00 a piece.

During that transaction and the previous

transaction conversations were had concerning

purchases of other types of controlled substances.

In response to a question as to whether she had

any more liquid dilaudid Linze stated she did not,

but had liquid morphine for sale for $225.00

per cc bottle. Linze also offered dexamyl pills

and amphetamine.

Linze advised that she would not be able

to deal until later that day as she was going to

meet her man that afternoon. Detective Michael

McDonald and Officer Denver Bealmear and Officer

Gerald Hawkins conducted surveillance of Linze

from her home at 605 Ellwine as she left her home

at approximately 3:30 P.M. in a 1974 olive vinyl

-26-

over light green Chevrolet Impala. Linze drove

to a Venture store located at Kingshighway and

Christy and was seen driving around the lot until

approximately 4:00 P.M. when she met with a

suspect, later identified as Larry Smith, in a

black vinyl over silver 1974 Chevrolet Caprice.

The black over silver Caprice containing Linze

and Smith then drove to the intersection of Inner

Belt 725 and Delmar Blvd. where the vehicle

stopped in front of a large office building and

the subjects exited the vehicle and entered

the building. From the surveillance point the

officers were unable to note exactly where subjects

went. (our emphasis) At approximately 6:10 P.M.

Detective McDonald observed the black over silver

Caprice return to the Venture store. Linze exited,

got into her own vehicle and returned to her home.

At 7:15 P.M. Affiant telephoned Linze, who stated

she was ready to do the deal and subsequently

affiant purchased 20 dilaudid tablets at Dohack's

Restaurant in South St. Louis County.

On August 3, 1976, affiant ordered 20 more

dilaudid tablets from Linze. Affiant agreed with

Linze to meet with Ronald Blest who had been with

Linze on July 15, 1976 to make the purchase from

Blest. Affiant met with Blest at the K-Mart

Department Store in South County, at which time

Blest handed affiant a bag from which affiant

removed 20 yellow tablets inscribed "K-4", exactly

as the previous tablets had been inscribed. On

August 9, 1976, affiant purchased 20 dilaudid

tablets from Linze with other discussions con-

‘cerning marijuana and opium. Further attempted

purchases from Linze resulted in affiant being

advised that Linse was not home and therefore

affiant purchased quantities of dilaudid from

Juanita K. Vitale on August 12, 1976 and from

Susie Annamay McCallum on August 20, 1976.

McCallum also directed affiant to Vitale's new

home address where affiant purchased a quantity

of heroin.

The St. Louis County Narcotics Section

requested aid from the Drug Enforcement Admin-

istration in the form of financing and surveillanc

manpower for further investigation of Linze to

determine her source and her ability to distribute

BEST COPY AVAILABLE

-28-

dilaudid. Such assistance was authorized and on

August 24, 1976, affiant contacted Linze by

telephone and asked her to meet him. In a sub-

sequent conversation in person affiant advised

Linze that he had the financial backing to

purchase 200 dilaudid tablets which he wanted

the price lowered on due to the large amount.

After some negotiation on a $10.00 per tablet

priceswas agreed upon. Linze stated that she

would talk to her man tonight and she would let

him know the next day. Linze advised that she |

was getting 300 tablets per week to deal. After

some conversations concerning heroin and cocaine

Linze advised affiant to call her the next day

before noon.

On August 25, 1976 at approximately 12:00

noon affiant called Linze and advised her he

was ready to deal and she stated she would meet

her man that night and to be in further contact

at a later time. A surveillance team of 8 local

and federal officers were prepared. At 7:30 in

the evening, affiant called Linze and asked for

the 200 tablets and Linze stated that she had

only 100 tablets and could not get the rest

until the next day. Surveillance agents then

surveilled Linze as she left her home and drove

to the Venture store at’ Kingshighway and Christy

where she again met with the previously described

white male, Lawrence Alfred Smith, driving a

1974 Chevrolet Caprice. After driving around and

meeting with another individual whom Linze the

next day stated sold her some cocaine, Linze

returned home. On Thursday, August 26, 1976,

affiant called Linze at 3:00 p.m.. Linze advised

she was getting ready to leave and meet her man.

A surveillance team of 8 St, Louis County Police

Officers, later joined by officers of the Drug

Enforcement Administration, took up surveillance

at various places Linze and Smith had been

previously seen. This surveillance team included

affiant. Linze left her home at approximately

3:30 P.M. and drove to the aforementioned Venture

Store parking lot at which time she met with the

same individual, now identified as Lawrence

Alfred Smith, entered his vehicle and dove to the

Del Crest Plaza Shopping Center located at Delmar

and Innerbelt 725. Various officers took up

-30-

surveillance at stores in the general location

and in automobiles. Smith and Linze exited

the vehicle and entered the Del Crest Plaza |

Pharmacy, 8416 Delmar, at approximately 4:05.

(our emphasis) Smith was then seen to leave |

the pharmacy and remove two orange and white

boxes and take them into the pharmacy. As his

trunk remained open one surveilling officer was

able to walk by the trunk and found the boxes

were labeled "JIL, Model 852, C.B. Radios."

At 4:02 P.M. Smith was seen placing a box in

the trunk of his vehicle which was labeled Isomil,

a baby formula. Linze had discussed with affiant

:

:

previously that her daughter had recently had

a child.

Due to the size of the Del Crest Plaza

Pharmacy being rather small and it being considerec

too dangerous to surveil from the interior of

the pharmacy, various agents from time to time

walked into the pharmacy, made a small purchase

and left. During one of these incidents,

Detective Sturm observed the pharmacist, now

identified as Bernard Kershman, hand a brown

paper bag to Smith. who immediatel® handed it

to Linze and stated: "This is hers". (our

emphasis) The subjects remained in the pharmacy

until approximately 5:20 P.M. During this time

they were joined by a white male, approximately

aged 60. Detective Michael Adams of the Drug

Enforcement Administration, entered the pharmacy

to make a purchase and while in the pharmacy

was able to overhear a conversation between

é

Smith, the white male, and Linze in the presence

of the pharmacist Kershman. (our emphasis)

Adams was not able to observe the conversation

as his back was to the backs of the individuals

but the conversation was in substance as follows:

A male voice stated, "If we broke the kegs (a

common term used for large quantities of pills)

up we could sell more pills. We were too cheap

with that last bunch. We could have gotten

more money." Linze stated: "We will have to

jack the price up next time."

At 5:20 P.M. when Linze and Smith left they

surveilled back to the Venture Store where Linze

got in her car and drove home and arrived at

32

approximately 6:15 P.M. Affiant then called Linze

who stated that she had met her man and was ready

to deal. It should be noted that all the items

placed in Smith's trunk, including the boxes

of baby formula and the paper bag received from

the pharmacist, were observed being placed in

Linze's car at the time Smith and Linze returned

to the Venture Store. Affiant arranged to meet

with Linze at Joe Tangero's Restaurant, 4301

South Broadway, at 8:00 P.M. Surveillance

officers at that address observed Larry Smith

sitting in his black over silver Caprice on the

Kroger's parking lot directly east of Joe Tangero's

Restaurant at approximately 7:10 P.M. Surveillance

officers advised that Linze arrived at the

restaurant at 7:30. After affiant arrived Linze

got out of her vehicle and into the affiant's

vehicle where she sold to affiant 200 tablets of

dilaudid in exchange for $2,000.00, which affiant

had been supplied with by the Drug Enforcement

Administration. At the same time affiant received

a tinfoil package from Linze containing a white

powder which she stated was a sample of the cocaine

~~ , ™=

she had purchased the night before. During

the ensuing conversation, Linze stated that

she liked dealing in large amounts because with

300 tablets a week it would take the heat off of

her house to sell in large quantities rather

than in numerous smaller quantities requiring

people to come and go from her house all the

time.

Affiant has been working closely with

Special Agent Terry Sawyer of the Drug Enforcement

Administration and other federal officers using

computer printouts and other sources of infor-

mation including the Compliance Section of the

Drug Enforcement Administration. Affiant has

learned the following: Larry Shipley, Supervisor

of the Compliance Section of the Drug Enforcement

Administration in St. Louis, advised that their

records, although incomplete, (our emphasis)

show that Del Crest Plaza Pharmacy has ordered

and received 1400 4 mg. tablets of dilaudid from

Meyer Brothers Pharmaceutical Company from

February 1976 through May 25, 1976. Shipley

also advised that the Drug Enforcement Adminis-

tration gets a copy of orders to various phar-

maceutical° companies and these copies indicate

the following: Del Crest Plaza Pharmacy ordered

and received 500 dilaudid #4 mg. tablets and 500

preludin on June 17, 1976 from the AMFAC

Pharmaceutical Company; on June 28, 1976 500

preludin from AMFAC; on July 6, 1976, 600 preludin

tablets and 600 dilaudid tablets; on July 13,

1976 500 preludin tablets and 500 dilaudid tablets.

Shipley advised affiant that these iting

records are not complete in that the accuracy

of such information depends solely on whether

or not the pharmaceutical companies properly

supply the Drug Enforcement Administration with

their copy of all orders and deliveries and further

depends on how up-to-date these copies are when

furnished. From affiant's own knowledge and

with further consultation with Mr. Shipley,

affiant knows that dilaudid is a very rarely

prescribed drug which is used almost exclusively

for terminal cancer patients who are in extreme

pain. In most instances with such patients if

dilaudid is used doctors prefer the injectible

form of dilaudid rather than the tablet form.

Shipley advised that those 1600 tablets demonstrate

to have gone to Del Crest Plaza Pharmacy during

less than a month period from June 17th through

July 13th is considered to be a greatly excessive

amount. Likewise, the large amount of preludin.

Shipley advised affiant that a random sample

was taken of various pharmacies to see how much

dilaudid they were purchasing and in the same

period these six stores including one right

across the street from Del Crest Plaza Pharmacy,

which is a much larger store than the Del Crest

Pharmacy, ordered a total of 300 dilaudid.

WHEREFORE, affiant asks that a search warrant

be issued for the Del Crest Pharmacy to seize

the inventory of all Schedule II drugs with

the supporting records of purchases and sales

in that affiant's investigation has revealed

the following:

(1) Early in the investigation

information was received from Patricia House

that Peggy Linze was getting her drugs from

a pharmacist;

_—_ ° =

(2) Through discussions and purchases

from Linze it has been learned that she has the

ability to deal in large quantities of dilaudid,

Claiming to deal 300 tablets a week;

(3) On two separate occasions when

Linze announced she was going to meet her man to

make a pickup she and Larry Smith were followed

to the Del Crest Plaza Pharmacy where at least

On one occasion she received a brown paper ~bag

and immediately after returning home was for the

first time that day able to deal dilaudid.

(4) That based on the compliance

investigation done by Mr. Shipley and his staff,

it is learned that ihe Guathodies pharmacy is

receiving and distributing highly excessive amounts

of both dilaudid and preludin considering the

store size and nature of the drugs in question."

There was not a single affirmative statement

in the Affidavit that states that the drugs that

the affiant had purchased had come from defendant,

Bernard Kershman. There is a hearsay statement

that "Peggy Linze was getting her drugs from a

man who was a pharmacist." The hearsay statement

of Detective Sturm states that he saw Bernard

Kershman "hand a brown paper bag to Smith, who

immediately handed it to Linze and stated: 'This

is hers'". There is nothing even in the hearsay

statement that even suggests that there were

dilaudid and/or preludin or any other drugs in

the brown paper bag. There isn't even anything

in the hearsay statement that indicates that the

subject Smith handed a prescription to defendant

Kershman or even asked defendant Kershman for any

drugs. The hearsay statement of Detective

Michael Adams states that he overheard a conver-

sation of the individuals and heard an unidentifies

male voice state: "If we broke the kegs (a common

term used for a large quantity of pills) up we

could sell more pills". There is nothing in the

hearsay allegation that defendant Kershman was

a party to said conversation, acknowledged said

conversation, and in view of the affidavit that

the pharmacy was small and "being rather small”

it was not unusual that the statement may have

been made in the presence of defendant Kershman.

There is nothing in the statement to even indicate

a38<

that defendant Kershman was within hearing

range of said statement,

The hearsay statement of Larry Shipley

acknowledges that the records of the Drug

Enforcement Administration are "although

incomplete". There is nothing in the hearsay

statement of Larry Shipley that the dilaudid

that was purchased by affiant was in fact the same

manufacturer that the manufacturer's shipped to

defendant Kershman. There is nothing in the

affidavit that even claims that defendant Kershman

was in fact even selling the dilaudid to Peggy

Linze or Larry Smith.

The Affiant was acting as an undercover

agent and was purchasing controlled substances

from Patricia Lee House. House explained that

she was getting her drugs from Peggy Linze and

that Peggy Linze was getting her drugs from a

man who wasS a pharmacist. The affidavit then

recites an independent investigation which attempts

to corroborate the information that the affiant

received from Patricia House. In Aguilar v. Texas,

378 U.S. 108, 12 L. Ed 2d 84 Sup. Ct. 1509 (1964)

a search warrant was issued upon an affidavit

of police officers who swore that they had

received reliable information from a credible

person and as a result believed that narcotics

were being illegally stored on defendant's

premises. The affidavit in the case at bar, is

in the nature of*information that the affiant

undercover police officer gathered begging the

confidence of Patricia House. The affiant in

the case at bar did not attempt to claim in his

affidavit that the information he received from

Patricia House was in fact "credible" or

"reliable". In Aguilar, the Court held the app-

lication for the search warrant failed to set

forth any of the “underlying circumstances

necessary to enable the Magistrate independently

to judge of the validity of the informant's

conclusion that the narcotics were where he

said they were." There is nothing in the affiant's

affidavit in the case at bar that would enable the

Magistrate independently to determine that

records of purchases and sales of Schedule II

narcotic drugs prescription and order forms for

=39-

Schedule II narcotic drugs were in fact located

where affiant stated they were located.

The affidavit fails to set forth any under-

lying circumstances to enable the Magistrate to

independently judge the validity of Patricia

House's statement.

The statement of Patricia House is in the

nature of an informer's tip.

Spinelli v. U.S.A., 393 U.S. 410, 21 L.

Ed. 637, 89 S. Ct. 584, the Court reviews an

affidavit for the issuance of a search warrant

and the Court observes at page 643:

"The informer's report must first be

measured against Aguilar's standards so that

its probative value can be assessed. If

the tip is found inadequate under Aguilar,

the other allegations which corroborate

the information contained in the hearsay

report should then be considered. At this

stage as well, however, the standards

enunciated in Aguilar must inform the

magistrate's decision. He must ask: Can

it fairly be said that the tip, even when

certain parts of it have been corroborated

by independent sources, is as trustworthy

as a tip which would pass Aguilar's tests

without independent corroboration? Aguilar

is relevant at this stage of the inquiry as

well because the tests it establishes were

designed to implement the long-standing

principle that probable cause must be determing

competitive enterprise of ferretin

crime." Johnson v. United Seaten. 33°

U.S. 10, 14, 92 L Ed 436, 440, 68 S. ct

367 (1948). A magistrate cannot be said

to have properly discharged his constitu-

tional duty if he relies on an informer's

tip which - even when partially corroborated

~ 2S not as reliable as one which passes

Aguilar's requirements when standing alone.

Applying these principles to the

present case, we first consider the weight

to be given the informer's tip when it is

considered apart from the rest of the

affidavit. It is clear that a Commissioner

could not credit it without abdicating his

constitutional function. Though the affiant

Swore that his confidant was "reliable,"

he offered the magistrate no reason in support

of this conclusion. Perhaps even more

important is the fact that Aguilar's other

test has not been satisfied. The tip does

not contain a sufficient statement of the

underlying circumstances from which the

informer concluded that Spinelli was running

a bookmaking operation. We are not told

how the FBI's source received his information -

it is not alleged that the informant person-

ally observed Spinelli at work or that he had

ever placed a bet with him. Moreover, if

the informant came by the information

indirectly, he did not explain why his

sources were reliable. CF. Jaben v. United

States, 381 U.S. 214, 14 L Ea dd 345, 85

S. Ct. 1365 (1965). In the absence of a

statement detailing the manner in which the

information was gathered, it is especially

important that the tip describe the accused's

criminal activity in sufficient detail that

the magistrate may know that he is relying

on something more substantial than a casual

rumor circulating in the underworld or an

accusation based merely on an individual's

general reputation."

by a “neutral and detached magistrate", and

not by “the officer engaged in the often

BEST COPY AVAILABLE | — =

There is nothing in the affidavit in the

case at bar that even accuses the defendant of

any criminal activity much less sufficient detail

that is required by Spinelli.

The Court goes on to state:

"When we look to the other parts of

the application, however, we find nothing

alleged which would permit the suspicions

engendered by the informant's report to

ripen into a judgment that a crime was

probably being committed. As we have

already seen, the allegations detailing the

FBI's surveillance of Spinelli and its

investigation of the telephone company

records contain no suggestion of criminal

conduct when taken by themselves and they

are not endowed with an aura of suspicion

by virtue of the informer's tip. Nor do

we find that the FBI's reports take on a

sinister color when read in light of common

knowledge that bookmaking is often carried

on over the telephone and from premises

ostensibly used by others for perfectly

normal purposes. Such an argument would

carry weight in a situation in which the

premises contain an unusual number of

telephones or abnormal activity is observed,

CF. McCray v. Illinois, 386 U.S. 300, 302,

18 L Ed 2d 62, 65, 87 S. Ct. 1056 (1967)

but it does not fit this case where neither

of these factors is present. All that

remains to be considered is the flat statement

that Spinelli was "known" to the FBI and

others as a gambler. But just as a simple

assertion of police suspicion is not itself

a sufficient basis for a magistrate's

finding of probable cause, we do not believe

it may be used to give (393 US 419)

additional weight to allegations that would

otherwise be insufficient.

a43—

The affidavit falls short of the

Standards set forth in Aguilar, Draper, and

our other decisions that give content to

the notion of probable cause. In holding

as we have done, we do not retreat from

the established propositions that only the

probability, and not a prima facie showing of

criminal activity is the standard of probable

cause, Beck v. Ohio, 379 U.S. 89, 96 13

L Ed 2d 142, 147, 85 S. Ct. 223 (1964); that

affidavits of probable cause are tested by

much less rigorous standards than those

governing the admissibility of evidence at

trial, McCray v. Illinois, 386 U.S. 300,

311, 18 L Ed 2d 62, 70, 87 S. Ct. 1056 (1967);

that in judging probable cause issuing

magistrates are not to be confined by

niggardly limitations or by restrictions on

the use of their common sense, United States

v. Ventresca, 380 U.S. 102, 108, 13 L Ed

2d 684, 688, 85 S. Ct. 741 -(1965); and that

their determination of probable cause should

be paid great deference by reviewing courts,

Jones v. United States, 362 U.S. 257, 270-271,

4L Ed 2d 697, 707, 708, 80 S. Ct. 725, 78

ALR 2d 233 (1960). But we cannot sustain

this warrant without diluting important

safeguards that assure that the judgment of

a disinterested judicial officer will inter-

pose itself between the police and the

citizenry."

There is nothing in the affidavit in the case

at bar that defendant Kershman was committing any

crimes. There isn't even a showing of a probability

of criminal activity by the defendant.

The affidavit falls short by any test, even

less rigorous standards, to satisfy the requirements

-44-

set forth in Aguilar and Spinelli. first off write his name; things like that; to

write down different addresses; different names

_ that I had in my possession that I wanted him

The Court Erred In Allowing Witness, Detective. to write.

Becker, To Testify To An Out Of Court Declaration Q. What particular names did you ask him

Made By Co-Defendant Smith For The Reason That to write?

Said Statement Was Made After The Conspiracy A. MR. SCHWARTZ: If your Honor please,

Had Come To An End And Not Made In Furtherance may we approach the bench?

Of Said Conspiracy. THE COURT: Yes.

The Honorable John K. Regan issued an order (Whereupon the following proceedings were

to compel the defendant Smith to give handwriting had at the bench, in the presence but out of

samples. There is no question that the object the hearing of the Jury.)

and purpose of the conspiracy had come to an MR. SCHWARTZ: This is obviously after

end. The United States Attorney introduced any conspiracy came to an end. This is pursuant

Smith's hearsay statements to tend to prove that to an order issued by you.

the prescriptions were false but that the THE COURT: I issued the order, there's

Government could not prove it because of what no question about it.

Smith said and did. The United States Attorney MR. SCHWARTZ: And I don't see any

asked the following questions: relevancy as to - -

Q. Did you give Mr. Smith any instructions THE COURT: It is relevant to the

on when those particular handwriting samples prescriptions for one thing.

were taken? MR. COUGHLIN: Very.

A. Yes, sir. I requested that Mr. Smith MR. SCHWARTZ: What he is going to get

in to next, Judge, is that Mr. Smith attempted

-45- -46-

to feign his signature and write in such a

manner that nobody could tell what it was. Now,

that's not relevant.

MR. COUGHLIN: It's as relevant as it

possibly can be. The prescriptions are phony

and I'm going to prove it. |

MR. SCHWARTZ: But that has nothing

to do with defendant Kershman.

MR. COUGHLIN: Yes, it does.

THE COURT: I think it is all part

of the conspiracy.

MR. SCHWARTZ: Judge, it had come to

an end.

THE COURT: No. This merely goes back

to show that the prescriptions are phony. No,

he can show it.

(Whereupon, the following proceedings were

had in the presence and in the hearing of the

Jury.)

Q. (Mr. Coughlin) Did you give Mr. Smith

* any instructions when he was making those hand-

writing exemplars?

A. Yes, I explained to him what I wanted

—_— |

him to write.

Q. And where did you get the names that you

asked him to write on there?

A. They came from scripts that apparently

had been forged.

Q. And how long did that handwriting

exemplars take place?

A. The period of time they covered?

Q. Yes.

A. Approximately a little over an hour.

Q. And did you give Mr. Smith any further

instructions after viewing his handwriting exem-

plars?

A. After the first page, why, I had him

write his name 10 times and print his name 10

times, two different pages, I noticed that Mr.

Smith was writing rather large and also bearing

down extremely heavy. I would have to - - after

the first page was written I would have to tear

down into the pad, say tear off about five sheets

because he was writing that hard. He was making

indentations further down. And I requested that

Mr. Smith not bear down so hard and I also

-48-

requested if he could write smaller and he

stated to me that he couldn't.

MR. SCHWARTZ: If Your Honor please,

I'm going to object to what Mr. Smith said.

That is obviously hearsay.

MR. COUGHLIN: Your Honor, I submit

it is not hearsay. It's not to the truth of

the matter - -

THE COURT: It will be overruled. (TR.

87-90).

There is no question that the prejudicial

hearsay statement of co-defendant Smith (who

was not tried with defendant Kershman) was made

after the object and purpose of the conspiracy

had come to an end.

This Court has held that extrajudicial

statements of a co-conspirator made after the

conspiracy had come to an end, or not in furth-

erance of the conspiracy are inadmissible. Lutwak

v. United States, 344 U.S. 604, 97 L Ed 593, 73

S. Ct. 481 and Krulewitch v. United States, 336

U.S. 440 93 L Ed 790, 69 S. Ct. 716.

IV.

The Court Erred In Overruling Defendant's

Motion For Mistrial After Rebuttal Witness Candice

Wilson Testified That "She Didn't Want To Get

Involved In Something Like This" and That She

Did Not Like The Way He (Defendant) Was Conducting

His Pharmacy For The Reason That Said Statements

Were Highly Prejudicial And Inferred That

Defendant Was Committing Other Illegal Acts And

Said Statement Constituted Improper Rebuttal

Testimony.

The United States called Candice Wilson,

a former employee of defendant Bernard Kershman.

She had worked for the defendant for approximately

four days. (TR. 804).

The United States called Ms. Wilson as a

rebuttal Witness. The United States attorney .

asked Miss Wilson the following: (TR. 804, line 15)

Q. And why did you - - what caused you to

leave there?

A. I had just taken - - was-going to be

taking my boards and I didn't want to become

involved in anything. I didn't care about the

-50-

way he was doing his practice.

MR. SCHWARTZ: Judge, may we approach

the bench, please?

THE COURT: You may.

(Whereupon, the following proceedings were

had at the bench, in the presence but out of

the hearing of the Jury.)

MR. SCHWARTZ: Judge, that's not only

improper rebuttal, it's highly prejudicial. I

ask the Jury be discharged and a mistrial be

declared.

MR. COUGHLIN: It is direct, it couldn't

be more on point as to what the defense was in

this particular case. ee. Schwartz has painted

Mr. Kershman as the greatest pharmacist in the

history of the western world and the facts of the

matter are it isn't the truth. He has stated that

he has informed students to call doctors to

properly update things.

THE COURT: Of course, the point is

that she said she doesn't want to get involved

in anything.

MR. COUGHLIN: It's not that bad of a

-5Sl-

statement, Your Honor.

THE COURT: Well, let's straighten it

out. It will be overruled at this time.

(Whereupon the following proceedings were

hadin the presence and in the hearing of the Jury.)

Q. (Mr. Coughlin) Were you present on the

day when two individuals were arrested outside

the pharmacy?

A. Yes, I was.

Q. And did you fill any prescriptions for

those individuals to your knowledge?

A. I didn't know it until afterwards

that - -

Q. What names were they?

A. I believe it was two first initials,

the last name was Pruitt, and it was like J. Pruitt

and L. Pruitt I believe.

Counsel objected on the grounds that the

statement of the witness constituted improper

rebuttal. The prejudicial nature of the statement

inferred that the defendant was committing other

illegal acts or crimes. The witness had only

worked for defendant for a period of four days.

-SJ=_

In view of all of the other testimony that the

jury heard concerning the filling of prescriptions

set out in exhibits 1 through 177, the jury could

have well inferred that the witness was referring

to other crimes not the subject of the matter

for which defendant was on trial.

There are many cases holding that rebuttal

testimony must specifically relate to certain evi-

dence offered by the defendant. Whether or not

the statement is prejudicial or proper rebuttal

testimony will turn upon the peculiar facts of

the instant case. In an attempt to comply with

the spirit of expeditious handling of criminal

appeals, counsel feels review of those cases

holding comments to be improper or testimony to

be improper rebuttal will serve no useful purpose

and only lengthen the brief.

CONCLUSION

It is counsel's opinion that the conduct of

appellant was nothing more than that which a

pharmacist is authorized and required to do and

that the evidence presented failed to prove

that he criminally participated in any of the

acts alleged. The particular instruction that

appellant complains of was patently weighted in

favor of the Government. All of the other

Claims of error in addition to the aforesaid

requires that the Court grant Certiorari to

review said claims.

LAW OFFICES OF THEODORE SCHWARTZ

7701 Forsyth Suite 560

Clayton, Missouri 63105

(314) 863-4654

Attorney for petitioner

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 76-2075

; *

UNITED STATES OF AMERICA, Appeal from the

* United States

Appellee, District Court for

* the Eastern District

Vv of Missouri

*

BERNARD KERSHMAN,

*

Appellant. °

APPENDIX

Submitted: April 1l, 1977

Filed: May 18, 1977

Before HEANEY, ROSS and STEPHENSON, Circuit Judges

STEPHENSON, Circuit Judge

This direct criminal appeal is taken from

a jury's verdict of guilty on three counts of a

19-count indictment. The three counts charged

appellant Kershman with the knowing and inten-

tional distribution of dilaudid (a Schedule II

narcotic drug controlled substance), in violation

of 21 U.S.C. 8841(a)(1) (two counts), and

o8Se

ee

Md . ° o t . .

conspiracy, in violation of 21 U.S.C. 8846. The The government's evidence showed that in May

2 of 1976, the St. Louis County Police Department

district court“ imposed sentence pursuant to 18

U.S.C. $4205(c). Appellant alleges that errors started surveilling the residence of Peggy Linze.

in the instructions to the jury, in the admission In July officer Ted Zinselmeier arranged a purchase

. - P . 4 Pp 2 M4 ‘ . .

of certain government exhibits, in the refusal to of dilaudid from Patricia House After gaining

; :

grant defendant's motion for mistrial, and in the House's confidence, he asked her about her

refusal to voir dire the jury panel on certain supplier. House replied she was getting the

questions proposed by the defendant, compel Gilaudid from Peggy Linze. When asked by

. , , , : ‘

reversal of this conviction. In addition, euitens Zinselmeier as to Linze's supplier, House replied

M j j a j Ss «

Kershman contends that the evidence was insufficient that Linds Wed © CHRON Oe OOP Sees

to sustain the verdict. We affirn. After several purchases from House, Officer

Appellant Kershman has been a pharmacist for Zinselmeier began purchasing dilaudid from

39 years and has owned the Del Crest Plaza Pharmacy ee Se

for the last 10 years. He came under suspicion as Prior to a purchase of dilaudid on July 26,

, : : £

a result of an investigation by the St. Louis 1976, Linze advised Zinselmeier that she was out o

County Police Department of co-defendants Peggy dilaudid and was leaving to meet her "man". She

: : j m

Linze, Lawrence Alfred Smith and Patricia House. was followed to a location where she met Lawrence

Alfred Smith and from there the two proceeded to

“The indictment was filed against appellant and

three other persons, Peggy Linze, Law

ith an ici : rence Alfred ; i ildi hman'* rmacy was

Smith d Patricia House. Appellant was granted an office building where Kers s pha cy

a severance.

2

The Honorable John K. REgan, United States

District Judge for the Eastern District of

Missouri.

located. Upon Linze's return from the office

building, she was able to complete the sale

of dilaudid to Zinselmeier. Another similar

transaction took place during August of 1976.

On September 8, 1976, Zinselmeier arranged for

a purchase of 425 tablets of dilaudid for $4,000

from Linze. Linze stated she would have to meet

her “man” the next day to acquire a sufficient

supply of dilaudid to complete the deal. Linze

was followed, along with Lawrence Alfred Smith,

to Kershman's pharmacy on September 9, 1976.

Linze and Smith were arrested as they left the Del

Crest Plaza Pharmacy with three bottles of dilaudid

in their possession. Appellant Kershman was

immediately approached by the police at which time

he produced three prescriptions for the dilaudid

he had just dispensed, A search warrant was then .

served and numerous order forms and prescriptions

were seized from Kershman's pharmacy.

The first issue we address on this appeal

is the appellant's contention of error in the

instructions to the jury. More specifically,

appellant Kershman contends that the following

instructions assumed facts not in evidence and

changed the reasonable doubt standard to a

reasonably prudent man standard:

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In this connection, you are further

instructed that if you find that the

prescriptions for Dilaudid which defendant

filled and which are involved in Counts 12

and 16 were not issued for a legitimate

medical purpose by a physician during the usual

course of his professional practice and that

under the facts and circumstances known to

him defendant had every reason to believe

that such purported prescriptions had not

been issued for a legitimate medical purpose,

and that defendant deliberately and consciously

closed his eyes to what he had every reason

to believe was the fact, such studied

avoidance of positive knowledge is a cir-

cumstance from which you may reasonably draw

the inference and find, in the light of the

surrounding circumstances shown by the

evidence in this case, that defendant knew

that such purported prescriptions had not

been issued for a legitimate medical purpose,

and hence were knowingly filled by him.

Several circuits have approved the use of

an instruction wherein the jury is instructed that

the element of knowledge may be shown by deliberate

ignorance. United States v. Jewell, 532 F 2d 697

(9th Cir.), cert. denied, 96 S. Ct. 3173 (1976);

United States v. Dozier, 522 F 2d 244, 225-27

(2a Cir.), cert. denied, 423 U.S. 1021 (1975);

United States v. Thomas, 484 F. 2d 909, 912-14

(6th Cir.), cert. denied, 414 U.S. 912 (1973);

United States v. Grizaffi, 471 F. 2d 69, 75 {7th

Cir. 1972), cert. denied, 411 U.S. 964 (1973).

The appellant does not take exception to this

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line of authority. He argues, however, that the

above instructions implied to the jury that there

was in fact “studied avoidance" on the part of

the defendant. We note that the instruction

specifically states “if you find that" and later

refers to those findings as “such studied avoidance

of positive knowledge." Therefore, we reject

appellant's argument that the instructions assumed

facts not in evidence.

Similarly, we reject appellant's argument

that the instruction changed the standard of

guilt from reasonable doubt to a reasonably pru-

dent man standard. In essence, the appellant

contends that the instructions failed to

emphasize that subjective belief is the deter-

minative factor. Therefore, the jury was allowed

to convict on an objective theory of knowledge

- - that a reasonable man would have believed

that the prescriptions had not been issued for

a legitimate medical purpose.

It is axiomatic that the jury instructions

should be construed as a whole. See United

States v. Thompson-Hayward Chemical Co., 446 F.

-60-

2d 583, 585 (8th Cir. 1971). The challenged .

instructions given here by the district court requi:

red the jury to find that the defendant deliberatel'

and consciously closed his eyes. Moreover, the

jury was instructed that if the pharmacist believed

in good faith that a prescription was issued and

prescribed for a legitimate medical purpose by

a physician acting in the usual accord of his

profession, then the pharmacist is excepted from

criminal responsibility.

In addition the court generally instructed

as follows: ™

The matter of intent is, of course,

an essential element which must exist in

order for an accused to be criminally liable.

Therefore, in order to find the defendant

guilty, you must not only believe that he

did the acts complained of, and of which he

here stands charged, but you must also believe

that the acts were intentionally, willfully

and knowingly done by the defendant.

An act is done "willfully" if done

voluntarily and intentionally, and with

specific intent to do something the

law forbids.

The term "knowingly" as used in these

instructions means that the act was done

voluntarily and purposely and not because

of a mistake or accident or some other

_ innocent reason. Knowledge may be proved

‘ by the defendant's conduct and by all the

acts and circumstances surrounding the case.

=£)<

In light of all these instructions, we conclude

that the jury was not permitted to convict on an

“objective” rather than "subjective" theory of the

knowledge requirement as urged by appellant.

Accordingly, the trial court did not err in its

instructions to the jury.

Appellant next contends that the district

court erred in admitting into evidence prescrip-

tions which were seized from the Del Crest Plaza

Pharmacy pursuant to a search warrant. More

particularly appellant argues that the affidavit

for the search warrant lacked probable cause.

We disagree.

This court has stated on several occasions that

"The affidavit need only establish the probability

of criminal activity and secreting of evidence on

specific premises, not proof beyond a reasonable

doubt." United States v. Jones, 545 F. 2d 1112,

1114 (8th Cir. 1976), quoting from United States

v. Smith, 462 F. 2d 456, 460 (8th Cir. 1972).

Turning to the record before us, the

affidavit set forth the undercover investigation

o£20

of Peggy Linze and her associates concerning the

dGilaudid sale. One associate had stated that

Linze's supplier was a pharmacist. On at least

one occasion Linze and Lawrence Alfred Smith had

been followed by a surveillance team to Kershman's

pharmacy. After the visit to the pharmacy, Linze

was able to sell a large quantity of dilaudid.

The affidavit recites that during one of these

pharmacy visits Detective Stern, who was inside

the pharmacy, observed appellant Kershman hand

a brown paper bag to Smith who immediately handed

it to Linze and stated: "This is hers." The aff-

idavit further stated that the Del Crest Plaza

Pharmacy had received a large amount (1600 tablets)

of dilaudid from June 17 to July 13, 1976. Dilaudi

is a very rarely prescribed drug used almost

exclusively for terminal cancer patients. Our

review of the lengthy affidavit convinces us that

it set forth sufficient reliable underlying facts

for the issuing court to find that there was pro-

bable cause to believe that records of purchases

and sales of Schedule II narcotic drug prescriptio!

were present at the Del Crest Plaza Pharmacy which

| BEST COPY AVAILABLE

af%ea

PhAVULU HNO eet eooue”

Appellant's next contention is that the

district court erred in refusing to grant appell-

ant's motion for mistrial. The government called

Candice Wilson as a rebuttal witness. Ms. Wilson

had worked for Kershman for four days. When asked

by the government her reason for leaving her

position at Kershman's pharmacy, she replied in

part that she "didn't want to become involved in

anything." The defense immediately asked for

a mistrial on the grounds that her answer was

prejudicial and improper rebuttal. The district

court directed the government to clarify the

matter and overruled the defendant's motion.

Thereafter the government asked the witness if she

was present on the day that. the two individuals

were arrested outside the pharmacy, to which

she responded in the affirmative. In light of

this explanation, we are satisfied that appellant

3The government argues alternatively that the

officers involved in the seizure had a right pur-

suant to 21 U.S.C. 8827 to examine the records

which were seized. If the officers have a right

to examine the records, the government argues ©

they likewise have a right to seize them as evid-

ence of the crime. Although we need not decide thi

issue in light of the fact that the affidavit was

sufficient, we note that in a similar situation the

First Circuit has upheld such a seizure. United

States v. Wilbur, 545 F. 2d 764 (lst Cir. 1976).

See United States v. Rabicoff, 55 F. Supp. 88

(W.D. Mo. 1944). ree

has failed to show an abuse of the trial court's

discretion in failing to grant a mistrial. See

United States v. Vitale, 549 F. 24 71, 72-73

(8th Cir. 1977).

The appellant next contends that the distric:

court erred in refusing to voir dire the jury

panel on the questions proposed by appellant. As

this court has previously stated:

We are required to recognize that the

form and scope of a voir dire examination

are matters that are left largely to the

discretion of the trial judge and that it

is only rarely that a supposed deficiency

in a voir dire examination will call for

correction by an appellate court.

United States v. Cosby, 529 F. 2d 143, 147-48

(8th Cir. 1976). Here appellant's proposed

questions dealt with specific areas of the law

of conspiracy. The district court commented to

counsel that it was not going to ask these

questions since it would be later instructing

the jury on that area of the law. The defense

did not object. Our review of the district

court's careful voir dire interrogation of the

juro~s convinces us that the procedural rights

of the appellant were adequately protected.

—_— +, =

a a, mn ee =—=—ti<C«~x Cd

JUDGM=>T

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Accordingly, we find that appellant's contention Wo. 76-2075

Wt <3 iad /2)

United States of America,

September Term. 37

_

that the voir dire examination was deficient is

. Appellee,

without merit. Appeal from the United States

vs. District Court for the

i. The appellant finally contends that the penned teste. a ne a

. J .* . . J 4 *

evidence was insufficient to sustain the verdict. Spoescens

«

We have carefully and thoroughly reviewed the CEES GENES GD SS OH) EP SHEE Gs Ge Ce ee

record of the United States District Court for the Eastern District

record and an exhaustive recitation of it would of Missouri and briefs of the respective parties end wes axgued by

not be helpful. Taking the substantial evidence , counsel.

On Consideration Whereof, it is now here ordered and adjudged

we find in the record in the view most favorable by thie Coust thet the judguent end sentence of the ceid Distsict

to the government and accepting as established all Court in this cause be and the same is hereby affirmed.

May 18, 1977

reasonable inferences from the evidence that tend

to support the action of the jury, United States

v. Frazier, 545 F. 2d 71, 74 (8th Cir. 1976), we

conclude that there was sufficient evidence to

sustain the verdicts.

Affirmed.

A true copy.

Attest:

. CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

+

Although appellant argues that the district court

erred in allowing Officer Becker to testify to an fo}

out-of-court declaration made by co-defendant Smit! Sere ctuyel f 2 To" are

it is clear from the record that Smith's statement ae: a

that he could not write smaller (made during the ieee

time he was giving a handwriting sample) was not SR er

offered to prove the truth of the matter asserted. ainsi, ve Re coe. 98 ananhe. ten Circuit.

Therefore, we find appellant's argument without SSRO Ste 4%

hana aed j -67- __ | BEST COPY AVAILABLE

APPENDIX C APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

76-2075 September Term, 1976

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT United States of America,

No. 76-2075 September Term, 1976 Appellee,

United States of America, Appeal from the United States

Appellee,

)

)

)

) )

we. Appeal from the United States V8. ; District Court for the-

} )

) )

)

District Court for the Eastern District of Missouri

Bernard Kershman, Eastern District of Bernard Kershman,

Appellant. Missouri.

, Appellant.

On consideration of Appcllant's motion for stay of

issuance of mandate in this cause, it is now here ordered The Court having considered petition for rehearing en banc

by this Court that Appellant's mction for stay of issuance

filed by counsel for appellant and, being fully advised in the

of mandate be and is hereby denied.

premises, it is ordered that the petition for rehearing en banc

June 27, 1977

be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also

be, and it is hereby, denied.

June 10, 1977

Pgitey =:

!

fe)

wo

1

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APPENDIX E

Supreme Court of the United States

No. A-44

BERNARD KERSHMAN,

Petitioner,

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsmEraTION of the application of counsel for petitoner46),

It Is Ornperep that the time for filing a petition for writ of certiorari in

the above-entitled cause be, and the same is hereby, extended to and inciucing

August 9 ,19_Z

/s/ Lewis F. Powell

Associate Jusctce of be Sucreme

Court of we United Siates

Dated this L5th

day of __ July 1977

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