Petition — Plesons v. United States

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., Supreme Court, U. &

QO EFI LEG.

SEP 6 977

MICHAEL RODAK, JR., CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No... QP"*852

JOHN D. PLESONS,

Petitioner,

v

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals for the Eighth Circuit

LAWRENCE J. LEE

ROBERT J. O'HANLON

506 Olive, Suite 802

St. Louis, Missouri 63101

Attorneys for Petitioner

a)

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

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Constitutional Provision Involved ............-++++55 2

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Reasons for Granting the Writ ..............++2005: 6

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Appendix A

Opinion of the Circuit Court of Appeals ............ A-l

Appendix B

Judgment of the United States Court of Appeals for the

EE nc du SUK oa ad eis anet ance eaeaas A-14

Cases Cited

Beckwith v. United States, 425 U.S. 341 ............ =. 69

Garner v. United States, 424 U.S. 648 ............... 8,9

Miranda v. Arizona, 384 U.S. 436 ..........000e eee 8,9

Rogers v. Richmond, 365 U.S. 534 ................. 11

United States v. Beasley, 550 F.2d 261 (C.A. 5) ....... 10

United States v. Mandujano, 425 U.S. 564 ............ 6, 10

United States v. Sellaro, 514 F.2d 114 (C.A. 8) ........ 10

United States v. Washington, 97 S.Ct. —, 52 L.Ed.2d 238 7

United States v. Washington, 328 A2d 98 (D.C.) ......7, 8,9

United States v. Wong, 97 S.Ct. —, 52 L.Ed.2d 231 .... 6

United States v. Wong, 553 F.2d 576 (C.A. 9) ......... 6

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

RSE aie

JOHN D. PLESONS,

Petitioner,

v

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals for the Eighth Circuit

John D. Plesons, Petitioner, prays that a Writ of Certiorari

be issued to review the judgment of the United States Court of

Appeals for the Eighth Circuit entered in this case on August

8, 1977.

OPINION BELOW

The opinion of the Court of Appeals (appendix, infra) has

not been reported as yet.

JURISDICTION

The judgment of the Court of Appeals was entered on August

8, 1977 (appendix, infra). The jurisdiction of this Court is

invoked under 28 U.S.C. 1254 (1).

QUESTION PRESENTED

Whether it is in violation of the Fifth Amendment privilege

1) to fail to warn a Grand Jury witness of his constitutional rights

to refuse to answer questions on the ground of self-incrimination;

2) to subsequently subpoena his records based on the information

which he was called on to give for the purpose of finding an

indictment against him.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution pro-

vides in part:

“No person . . . shall be compelled in any criminal case to

be a witness against himself.”

STATEMENT

The defendant, Dr. John D. Plesons, was charged in a

twenty-count indictment with distribution of controlled sub-

stances and conspiracy. The indictment charged that Dr. Ple-

sons did knowingly and willfully combine, conspire, confederate

and agree together and with each other and with unindicted

co-conspirators, Lawrence Alfred Smith and Peggy Lee Linze,

and with other persons whose names are to the Grand Jury

known and unknown, to distribute Dilaudid, Preludin, and

—

Desozyn, Schedule II narcotic Controlled Substances. On

January 14, 1977, Dr. Plesons was found guilty of nineteen

of the twenty charges. On February 4, 1977 the defendant was

committed to the custody of the Attorney General pursuant to

the provisions of Section 4205 (C) for a study and observation.

The evidence adduced at the trial may be briefly summarized

as follows:

On the 26th day of August, 1976, an undercover narcotics

agent purchased 200 Delaudid pills from Peggy Linze (T.77-79).

Thereafter Peggy Linze and a Larry Smith were followed at

various times to the Del Crest Pharmacy (T.80). On the 9th

of September, 1976, Linze and Smith were arrested for the

unlawful distribution of narcotics. From Smith’s car were seized

some blank perscription forms with Dr. Pleson’s name at the

top (T.100-101). From the Del Crest Pharmacy were seized

the pharmacy’s order forms for controlled substances and the

pharmacy’s inventory dated January 1, 1976 (T.159-160). A

review of the prescriptions revealed that a large percentage of

the prescriptions for Preludin and Dilaudid were on the Peti-

tioner’s prescription forms (T.168).

A handwriting expert testified that there was at least one

prescription for each of the nineteen dates alleged in the indict-

ment and were, at least in part, in defendant’s handwriting. (T.

330-441).

For each of these prescriptions the person named as the

patient testified that he did not receive the prescription or the

pills.

Medical experts testified, using the medical records turned

over by the doctor, that in their opinion, considering the num-

ber of prescriptions and the amount of pills prescribed, that the

prescriptions were not issued in the course of a legitimate medical

purpose.

wctian

Peggy Linze testified that she often received prescriptions

from the defendant in return for bringing “girls” to the doctor.

These prescriptions were often in other people’s names and she

would sell the pills that she obtained by filling the prescriptions

at the Del Crest Pharmacy. (T.682-691).

Several of the “girls” testified that they did go to the defend-

ant and receive prescriptions and money in exchange for sexual

favors.

The defendant denied that he had ever given any prescriptions

to Peggy Linze for other persons or in other persons’ names;

that he had always examined each of the individuals who came

to him; that he had given the prescriptions for legitimate medical

needs; and denied that he had prostitutes come to his office.

Prior to the trial, defendant filed a motion to suppress all

statements made by him before the Grand Jury and the records

he had turned over to Government agents when served with a

Grand Jury subpoena for their production.

The evidence adduced at the hearing showed that on the

15th day of September, 1976, the defendant was served with

a Grand Jury subpoena ordering him to appear before the

Grand Jury on the 16th day of September, 1976. On that day,

defendant appeared and gave testimony in regard to the crimes

with which he was subsequently charged. Several weeks after

his testimony, on the 4th of October, 1976, defendant was

served with a second Grand Jury subpoena ordering him to

produce certain records. The defendant handed the records

over to the Government agents who had served the subpoena.

The defendant testified that after receiving the first sub-

poena, he contacted a lawyer and the lawyer said he would

meet him at the Grand Jury room. However, the lawyer had

not yet arrived when the defendant was called to testify.

_—

At no time was the defendant ever advised of his rights

under the Fifth and Sixth Amendments, nor was he informed

that he was considered as a “suspect” or “potential” or “puta-

tive” defendant for crime involving the events and circum-

stances about which he was testifying and producing records.

Assistant United States Attorney Richard Coughlin testified

that he personally hac talked to the lawyer the defendant men-

tioned and was informed by the lawyer that the doctor had

nothing to hide. Mr. Coughlin and the lawyer had made ar-

rangements for the defendant to appear at 10:00 before the

Grand Jury instead of 9:00 as stated in the subpoena, and the

lawyer assured Mr. Coughlin that the defendant could in no

way be implicated in the crimes being investigated and that

he would be coming down for the Grand Jury appearance.

The evidence also revealed that at the time the defendant

had appeared before the Grand Jury to testify, Mr. Coughlin

was aware that a number of the defendant’s prescriptions were

filled by people who were selling drugs to Government agents

(pg. 32), and that pads of the defendant’s prescriptions had

been found in the car of a known dope dealer (pg. 22). The

defendant introduced into evidence a report, dated September

15, 1976, of a Government agent indicating that a high per-

centage of the prescriptions for Dilaudid and Preludin seized

from Del Crest Pharmacy were written by the defendant (pg.

13). Mr. Coughlin indicated that he was not aware of the

report.

Mr. Coughlin stated that at the time he went into the Grand

Jury, the defendant was not a suspect, but that approximately

halfway through “I started getting my suspicions, but” . .

(pg. 30).

The medical reports which were taken from the defendant

pursuant to a Grand Jury subpoena were used by the Govern-

ment and introduced into evidence (pg. 776). And defendant's

Grand Jury testimony was used to impeach defendant.

REASONS FOR GRANTING THE WRIT

An important question of general applicability affecting the

administration of criminal justice in the Federal Courts and

the Constitutional rights of individuals is presented here. It is

of special importance at this time because of some recent Su-

preme Court decisions broaching the issue of whether the failure

to warn a Grand Jury witness of his Constitutional right to

refuse to answer questions on the ground of self-incrimination

is a violation of such privilege.

In United States v. Mandujano, 435 U.S. 564 (1976), the

Court seemingly felt that a Grand Jury witness need not be

warned of his Constitutional privilege.

In United States v. Wong, 553 F.2d 576, the Court of Ap-

peals for the 9th Circuit held that a Grand Jury witness who

did not effectively understand her right under the Fifth Amend-

ment and was a potential defendant, was entitled to have her

testimony suppressed at her subsequent perjury prosecution.

The Court felt that if the Government places a Grand Jury

witness it knows to be virtually in position of a defendant in

a situation of either perjuring or incriminating herself, such

a procedure “is unfair, unless accompanied by warning which

in fact appraise the witness of the right to remain silent and

which thoroughly obviate involuntary self-incrimination or per-

jury.

The Supreme Court in United States v. Wong, — US. —,

52 L.Ed.2d 231, 97 S.Ct. — (May 1977), reversed, holding

that under no circumstances may a witness, even a potential

defendant, commit perjury and then rely on an alleged vio-

lation of her Fifth Amendment rights to save him from prose-

cution.

a

Then in United States v. Washington, 328 A.2d 98, the

District of Columbia Court of Appeals held that a Grand Jury

witness who is a potential defendant cannot knowingly and

intelligently waive his Fifth Amendment rights unless he is

informed that hé-is a potential defendant and in danger of

indictment. A

The Supreme Court in United States v. Washington, — US.

—, 52 L.Ed.2d 238, 97 S.Ct. — (May 1977), again reversed,

holding that the fact that a subpoenaed Grand Jury witness is

a putative defendant neither impairs nor enlarges his Consti-

tutional rights, and hence it is unnecessary to give such a de-

fendant this additional warning as to his potential defendant

status.

Further, and what is of importance here, is that after recog-

nizing that the witness had been given Miranda warnings (Mi-

randa v. Arizona, 384 U.S. 436) the Court stated, “Since warn- —

ings were given, we are not called upon to decide whether such

warnings were constitutionally required (21 Cr.L. at 3050).”

The decision specifically states that “this Court has not de-

cided that the Grand Jury setting presents coercive elements

which compel witnesses to incriminate themselves. Nor have

we decided whether any Fifth Amendment warnings whatever

are Constitutionally required for Grand Jury witnesses; more-

over we have no occasion to decide these matters today (21

Cr.L. at 3049).”

From the above, it appears that the Courts of Appeal would

be inclined to mandate that these warnings be given to a Grand

Jury witness, while this Court on the other hand, awaits an

appropriate occasion to rule upon the issue.

In the present case, as no warnings of any sort were given

prior to the defendant’s Grand Jury testimony, or to his release

of medical records to Government agents in response to a

Grand Jury subpoena, this becomes such an appropriate case

a

for the Court’s attention. This fact is recognized in the opinion

for the Eighth Circuit: “As Dr. Plesons was given no warnings

by the government, the question avoided in United States v,

Washington is presented, and we must consider whether the fail-

ure to warn Dr. Plesons and to secure an effective waiver of his

rights should result in the suppression of the documents.”

Unfortunately, the opinion goes on and circumvents the is-

sues as to Fifth Amendment rights of a Grand Jury witness,

and bases its decision on the “non-custodial” theory. The opin-

ion notes that the reasoning of Miranda was based in crucial

part on whether the suspect “has been taken into custody or

otherwise deprived of his freedom in any significant way.” It

observes that Dr. Plesons at the time he surrendered his rec-

ords to the Government agents, in effect, was neither arrested

nor detained against his will, or, in general, made the subject

of any compulsion or coercion. Finding, therefore, that no ele-

ment of compulsion to self-incrimination was present, it con-

cludes that no effective warnings were required; citing Beck-

with v. United States, 425 U.S. 341 (1976) and Garner v.

United States, 424 U.S. 648 (1976).

These cases are clearly distinguishable. In Garner the Gov-

ernment introduced Garner’s income tax returns, in one of

which he had identified his occupation as “professional gam-

bler,” and in all of which he had reported substantial income

from wagering. The Court recognized that Garner was indeed

compelled by law to file a tax return, but held that this did not

constitute compelled self-incrimination.

In Beckwith the starting point was the filing of his tax re-

turns; then, after his tax returns were filed, he was interrogated

in his home by a Government agent for the explicit purpose of

securing information that would incriminate him. The Court

held that the interrogation was not conducted in an inherently

coercive setting; hence the claim of compelled self-incrimination

was rejected.

‘ies

Granted, there is nothing inherently coercive about Garner's

having to file a tax return, or Beckwith’s interview in his home

about his return already filed. But, in contrast to filing a tax

return, the starting point for Dr. Plesons was a Grand Jury ap-

pearance! Unlike Garner or Beckwith in their non-custodial

setting where the Miranda warnings do not apply, Plesons was

required as a potential defendant, and without effective warnings,

to appear before the Grand Jury investigating the crime with

which he could be charged. It is one thing to have to file an

income tax return, and quite another to have to testify before a

Grand Jury. It is one thing to be questioned about your char-

acterization as a “professional gambler”, and quite another to be

served with a Grand Jury subpoena requiring the production of

medical records in your possession as the focus of a criminal in-

vestigation, and based on information one was called upon to

give as a Grand Jury witness. Without doubt this latter involves

substantial compulsion!

Is the analogy about the non-compulsion nature of having to

file a tax return in Garner sufficient to satisfy the “coercive

setting” issue presented in United States v. Washington, supra,

namely: whether “the Grand Jury setting presents coercive ele-

ments which compel witnesses to incriminate themselves?” We

think not. And considerating the totality of circumstances, this

case must be viewed in the “Grand Jury setting” and not the

“non-custodial setting.”

The question that needs to be decided is whether Dr. Plesons,

without effective warnings, was in effect forced by the Govern-

ment to answer all questions and thereby become the subject of

governmental misconduct; and whether this misconduct so un-

derminded the fairness of the subsequent proceedings which

required that he surrender his personal records to the two Gov-

ernment agents that the records should be suppressed. In short,

whether the Constitutional guarantee not only protects a Grand

=

Jury witness from being compelled to give direct evidence tend-

ing to establish his guilt, but also from having to surrender any

documents, or other link in the chain of evidence, which may

tend to convict him of a crime.

This case presents appropriate grounds for the granting of

Certiorari for the reason that it presents questions not only of

the Constitutional rights of individuals, but also the administra-

tion of criminal justice in the Federal Court. If a witness is not

accorded adequate procedural protection, then, as here, the

Grand Jury can be utilized as a most effective discovery tool.

Such a procedure would open a very wide door for abuse and

oppression. As pointed out in Michigan v. Tucker, 417 U.S.

433 (1974), the Fifth Amendment right at trial would be an

empty one indeed if its force could be circumvented by this

type of prosecutorial action at the “pre-indictment” stage.

The Grand Jury as was used in this case runs the “gross risk

of allowing the prosecution to evade its own Constitutional re-

strictions on its powers by turning the Grand Jury into its agent.”

United States v. Mandujano (Justice Brennan concurring),

quoting from the dissent of Justice Douglas in United States v.

Mora, 410 U.S. 19, 29; 35 L.Ed.2d 99; 93 S.Ct. 774 (1973).

This Court has continuously stated that the right to subpoena

does not provide additional rights to discovery. United States

v. Nixon, 418 U.S. 683; 94 S.Ct. 3090 (1974); Bowman Dairy

Co. v. United States, 341 U.S. 214; 71 S.Ct. 675; 95 L.Ed. 879

(1951). Nor may the prosecution use the Grand Jury for the

primary purpose of strengthening its case on a pending indict-

ment or as a substitute for discovery. United States v. Beasley,

550 F.2d 261 (Sth Cir. 1977); United States v. Sellaro, 514

F.2d 114 (8th Cir. 1973).

This Court can here re-affirm that “prosecution is accusatorial,

not inquisitorial, and the Fifth Amendment privilege is its es-

sential mainstay,” Rogers v. Richmond, 365 U.S. 534; 81 S.Ct.

735. “The Government thus is constitutionally compelled to

establish guilt by evidence independently and freely secured,

and may not by coercion prove a charge against an accused out

of his own mouth.”

CONCLUSION

For the reasons stated above, we respectfully submit that the

petition be granted.

Respectfully submitted,

ROBERT J. O'HANLON

LAWRENCE J. LEE

506 Olive, Suite 802

St. Louis, Missouri 63101

Attorneys for Petitioner

APPENDIX

APPENDIX A

United States Court of Appeals

For the Eighth Circuit

No. 77-1132

United States of America, )

Appellee, | Appeal from the United

v. States District Court for

the Eastern District of

John D. Plesons, Missouri.

Appellant. |

Submitted: June 14, 1977

Filed: August 8, 1977

Before LAY and ROSS, Circuit Judges, and MILLER, Judge.*

ROSS, Circuit Judge.

The appellant, a St. Louis physician, was convicted by a

jury on eighteen counts of violating 21 U.S.C. § 841(a)(1) and

one count of violating 21 U.S.C. § 846. Specifically, these

convictions relate to the unlawful distribution, and a con-

spiracy to distribute, Dilaudid, Preludin, and Desoxyn, three

Schedule II drugs. In general the scheme involved Dr. Plesons

in writing narcotic prescriptions for nonmedical purposes for

* JACK R. MILLER, Judge, United States Court of Customs and

Patent Appeals, sitting by designation.

—_.

his coconspirators who then procured the drugs at a phar-

macy. Sometimes the names of Dr. Plesons’ legitimate patients

were used on the prescriptions, though these patients testified

at trial they received neither the prescriptions nor the pills.

Medical experts inferred, in answers to hypothetical ques-

tions, that prescriptions for narcotics which Dr. Plesons had

given were not medically indicated, and were in fact excessive,

for the relatively minor complaints the patients were alleged

to have.

Dr. Plesons has not challenged the sufficiency of the evi-

dence against him, but appeals his conviction on the basis of

the district court’s refusal to suppress at trial incriminating

evidence obtained by the grand jury from him in the absence

of an admonishment of his fifth and sixth amendment rights.'

Secondly, appellant has alleged that the jury instruction should

have, and did not, accurately convey to the jury that to con-

vict they must find that Dr. Plesons prescribed drugs without

a legitimate medical purpose and outside of an authorized,

professional medical practice where his distribution of such

drugs was lawful.

Having considered the two allegations Dr. Plesons makes

in detail, we affirm the conviction.

I. The Self-Incrimination Claim

On September 15, 1976, the government subpoenaed Dr.

Plesons to appear and testify before a grand jury on the follow-

ing day. The subpoena was served by two government agents

—_— > oo

who gave Dr. Plesons a list of twenty patient names and told him

to bring his records on these individuals with him the next day

to the grand jury. Dr. Plesons appeared and testified at the

proceedings, referring throughout his testimony to information

and notations in the patient files. Dr. Plesons left with his

records that day, but the records were demanded subsequently

by a second subpoena dated October 4, 1976, which required

their production for the grand jury.? It is apparently undisputed

that at no time prior to his arrest did the government inform

Dr. Plesons of his right to secure counsel or his right to refuse

to incriminate himself, or that if he waived such right his volun-

tary testimony could be used as evidence against him.

Initially in his brief Dr. Plesons had claimed error in the fail-

ure of the trial court to suppress both incriminating grand jury

testimony given without warnings and the incriminating medical

records subpoenaed later. However at oral argument counsel

for the appellant abandoned the claim concerning the grand

jury testimony because of the limited use which had been made

of it at trial. As the appellant apparently concedes limited use of

the grand jury testimony at trial, we conclude that any error

in failing to warn the appellant at that stage of the proceedings

was, if error at all, a harmless one. See United States v. Donahey,

529 F.2d 831, 832 (Sth Cir. 1976).

The primary claim of the appellant rests on the extensive

use which the prosecution made of Dr. Plesons’ medical records,

which had been surrendered to the grand jury without an ad-

monishment to Plesons by the government of his right to refuse

to do so.

At an early date, the Supreme Court established that the fifth

amendment’s proscription that “[nJo person * * * shall be com-

2 The subpoena was dated October 4, ately de meng gg =f

duction of the records before the grand jury on October 13, 1976.

Apparently Dr. Plesons gave the records to the agents on October 4.

_—

pelled in any criminal case to be a witness against himself”

applied to one who appeared as a grand jury witness and was

there asked incriminating questions.

The object [of the fifth amendment] was to insure that a

person should not be compelled, when acting as a witness

in any investigation, to give testimony which might tend

to show that he himself had committed a crime. The privi-

lege is limited to criminal matters, but it is as broad as the

mischief against which it seeks to guard.

Counselman v. Hitchcock, 142 U.S. 547, 562 (1892) (em-

phasis added). This conclusion continues to be reaffirmed:

“{I}t is well settled that the Fifth Amendment privilege extends

to grand jury proceedings, Counselman v. Hitchcock, 142 U.S.

547 (1892) * * *.” United States v. Washington, supra, 45

U.S.L.W. at 4467.

We conclude that the privilege against self-incrimination

could have been exercised by Dr. Plesons when presented with

the grand jury subpoena, had he elected to do so, if the medical

records in question fell within the ambit of documents which

the fifth amendment will protect. The Supreme Court observed

at an early date that “we have been unable to perceive that the

seizure of a man’s private books and papers to be used in evi-

dence against him is substantially different from compelling him

to be a witness against himself. We think it is within the clear

intent and meaning of those terms.” Boyd v. United States, 116

U.S. 616, 633 (1886). In spite of the Supreme Court's recent

observation that Boyd, in some aspects, has been narrowed

through the years, Fisher v. United States, 425 U.S. 391, 407

(1976), we feel the records here do come within the historic

area of protection afforded by the fifth amendment to private

documents.* In the Fisher case the Court discussed, in the

3 The records in question are folders on individual patients with the

patient name typed at the top. Sheets of paper and notecards show, for

=_

context of the attorney-client privilege, the theory which it felt

justified the protection of documents as compelled testimonial

communications under the fifth amendment. It is, the Court

says, “(t]he ‘implicit authentication’ rationale [which] appears

to be the prevailing justification for the Fifth Amendment's

application to documentary subpoenas.” Fisher v. United States,

supra, 425 U.S. at 412 n. 12. Here, unlike the Fisher case where

the taxpayer could not authenticate his accountant’s workpapers,

the doctor prepared the records and could vouch for their ac-

curacy; his compliance with the subpoena in this case acted as

an assurance that the patient records produced were the ones

demanded. /d. at 413. Cf. United States v. Miller, 425 U.S. 435,

440 (1976). In Hill v. Philpott, 445 F.2d 144 (7th Cir.), cert.

denied, 404 U.S. 991 (1971), it was “not refuted” that the

physician’s seized records which included, among many other

types of records, “patient folders and their contents,” were “gen-

erally considered privileged from disclosure by a taxpayer under

the Fifth Amendment.” /d. at 146. In Bellis v. United States,

417 U.S. 85, 87-88 (1974), the Supreme Court clearly pro-

nounced that “[t]he privilege applies to the business records of

the sole proprietor or sole practitioner as well as to personal

documents containing more intimate information about the in-

dividual’s private life.”

Furthermore, the subpoenaed medical records were in the

possession of Dr. Plesons and were turned over to authorities by

him, a fact which avoids the issue which the Supreme Court has

recently raised when private papers are out of the hands of one

seeking to exercise the privilege. “In Couch v. United States

[409 U.S. 322 (1973)] we recently ruled that the Fifth Amend-

eoted as well The whpoons ake uested Dr. Pi r intment

. . Plesons

See GS SAEED GS SED rom August 1975 on taptanther

1976.

—

ment rights of a taxpayer were not violated by the enforcement

of a documentary summons directed to her accountant and re-

quiring production of the taxpayer’s own records in the pos-

session of the accountant. We did so on the ground that in

such a case ‘the ingredient of personal compulsion against an

accused is lacking.’” Fisher v. United States, supra, 425 U.S. at

397.

We know then of no reason why the fifth amendment’s pro-

tection would not have extended to Dr. Plesons and his private

medical papers had he chosen to refuse to produce them. The

fact remains, however, that Dr. Plesons turned them over, that

they incriminated him, and that the prosecuting attorney intro-

duced them as evidence of the crimes for which he was con-

victed. At trial, the records were introduced in the govern-

ment’s case-in-chief. They were identified for admission into

evidence by Drug Enforcement Agent Robert Jones who testi-

fied that the documents were the patient records seized by him

from Dr. Plesons at his office pursuant to the October 4 sub-

poena. Counsel for Dr. Plesons then renewed his objection to

the evidence which the court had earlier refused to suppress.

The records proved to be incriminating. Statements read aloud

in court from the files of patients concerning alleged health prob-

lems, for example, overweight, were contradicted when a patient

took the stand and denied ever having received treatment for

that problem or the Preludin diet piu prescriptions.

As Dr. Plesons was given no warnings by the government,

the question avoided in United States v. Washington, supra, 45

U.S.L.W. at 4468, is presented, and we must consider whether

the failure to warn Dr. Plesons and to secure an effective waiver

of his rights should result in the suppression of the documents. .

We conclude in the circumstances of this case, it should not.

Much of the recent debate over warnings for grand jury

witnesses centers on the dictum that if one “desires the protection

— *< pon

of the privilege, he must claim it * * *.” United States v. Mandu-

jano, 425 U.S. 564, 575 (1976), citing United States v. Monia,

317 U.S. 424, 427 (1943). “Absent a claim of privilege, the

duty to give testimony remains absolute.” Jd. at 575. Yet it is

clear in an analysis of fifth amendment problems that it is com-

pulsion which is condemned and that element must be examined

initially. In the absence of compulsion, a witness may volunteer

incriminating testimony, if that is his choice. United States v.

Washington, supra, 45 U.S.L.W. at 4467. It is over the assess-

ment of what constitutes compulsion, and which policies the

proscription against compelled testimony is designed to protect,

that the rift is created. The fifth amendment has been viewed

as the guardian of each individual to resist making any incrimin-

ating utterances not the product of his free will.

In this case we do not decide that no situation exists in which

warnings would be required to protect the free exercise of

constitutional rights before a grand jury; we decide only that the

record here reveals no actual compulsion or coercion, and that

Dr. Plesons’ situation in responding to the documentary sum-

mons did not contain elements of inherent coercion. Further-

more, we see no denigration of the adversary system of justice

by the failure to warn in this case.

Dr. Plesons has not pointed in his brief to any incidents or

circumstances which would give us cause to believe his free

will was overborne. See United States v. Washington, supra, 45

U.S.L.W. at 4467, citing Rogers v. Richmond, 365 U.S. 534,

544 (1961). His argument rests primarily on an analogy to

Miranda where the Court concluded “that without proper safe-

guards the process of in-custody interrogation of persons sus-

pected or accused of crime contains inherently compelling

pressures which work to undermine the individual's will to

resist and to compel him to speak where he would not otherwise

do so freely. In order to combat these pressures * * * the ac-

cused must be adequately and effectively apprised of his rights

— * aa

* * *” Miranda v. Arizona, 384 U.S. 436, 467 (1966) (em-

phasis added). The Court in Miranda turned its attention to the

menacing atmosphere encountered by an in-custody defendant

interrogated incommunicado at the police station: “[aJn in-

dividual swept from familiar surroundings into police custody,

surrounded by antagonistic forces, and subjected to the tech-

niques of persuasion described above cannot be otherwise than

under compusion to speak. As a practical matter, the compulsion

to speak in the isolated setting of the police station may well be

greater than in courts or other official investigations * * *.” /d.

at 461.

We are unable to find a similar inherently coercive setting in

this case. Plesons was served with the documentary summons

several weeks after his appearance and testimony in the grand

jury room.* He was served in his office and there turned the

records over to the drug enforcement agents. He was not taken

into custody. More importantly, he had, since the beginning,

been in contact with a lawyer. Immediately after the first sub-

poena was issued on September 15, 1976, and the request to

bring records along was made, Plesons “called my friend Bob

Ahrens and I talked to him about the subpoena and about the 20

records.” He asked Ahrens, a lawyer, “what to do.” According

to Plesons, Ahrens told Plesons he’d be there at the grand jury

4 It is disputed whether or not Plesons was a “putative defendant,”

that is whether the grand jury investigation had focused on him at the

time he was called to testify. Mr. Coughlin, the government

tor, asserts he was not suspect at that time, and the trial court found

that the narcotic agents’ report on the pharmacy, which placed Plesons

in suspicious circumstances, was not available to Coughlin before the

grand jury session.

Coughlin admitted “that approximately halfway through I started

getting my suspicions * * *.” Therefore, it may well be true that at

the time of the documentary summons several weeks later Plesons

was suspect and the government was aware that it sought incriminat-

ing disclosures. This factor alone seems insufficient to exclude evi-

dence subpoenaed without a prior warning and waiver where the cir-

cumstances otherwise showed no compulsion, and where counsel

could have helped appellant effectively exercise the right to retain the

records.

i ii

= * wo

the next day but, Plesons alleges, told him no more, and did

not explain to him his right to remain silent. Whether or not

Ahrens did inform Plesons of the privilege is a point in dispute.

Mr. Coughlin, the prosecutor, testified at the suppression

hearing that Mr. Ahrens called him after the physician had called

Ahrens; that Coughlin asked counsel if there was any chance |

the doctor was in on this; Ahrens allegedly assured Coughlin of

the dostor’s noninvolvement. At some point, Coughlin testi-

fied, Ahrens told him he'd told the physician “if you have got

nothing to hide go ahead and testify.” Plesons testified that his

lawyer did come to the September 16, 1976, proceedings as

promised, but did not arrive until Plesons was leaving the grand

jury room. Ahrens then met Plesons as he left the grand jury

room, and accompanied him while Plesons gave handwriting

exemplars. Plesons was not in custody and the records were

not subpoenaed until several weeks later.

We do not resolve the conflict in the evidence as to whether

or not Plesons was in fact informed of his rights by his attorney

prior to his testimony or the surrender of his records; it is not

necessary to do so. We consider the setting here far removed

from the circumstances of custodial interrogation which in-

spired the Court in Miranda to institute warnings as safeguards

to the exercise of constitutional rights. See also Beckwith v.

United States, 425 U.S. 341 (1976); Garner v. United States,

424 US. 648 (1976).

We thus find no inherent pressure in Dr. Plesons’ situation to

involuntarily incriminate himself, and no requirement of a

knowing and voluntary waiver of the privilege in his situation.

Though warnings would be a preferable practice, we decline

to hold that fifth amendment policies were sacrificed by the ad-

mission of the documentary evidence here;° a future case in the

grand jury setting may require a different result.

5 We likewise reject appellant’s due process claim which is based

on the appeals court decision in United States v. Wong, No. 74-1636

— A-10 —

Il. Jury Instruction Claim

Appellant secondly claims prejudicial error in the refusal of

the trial court to specifically instruct, as an added element of the

offense, that the jury must find that the prescriptions were not

written in the normal course of professional practice and that

they served no legitimate medical use or purpose under the cir-

cumstances. Counsel for the appellant made this objection spe-

cifically as to Counts II through XX, the substantive counts

charged; he did not object on this basis to the conspiracy count.

Due to our disposition of this claim on other grounds, we will

not discuss the government’s allegation that the error was not

properly preserved.

In United States v. Moore, 423 U.S. 122 (1975), the Supreme

Court decided that medical practitioners were subject to prose-

cutions under 21 U.S.C. § 841(a)(1) of the Controlled Sub-

(unpublished) (9th Cir., filed Sept. 23, 1974), rev’d, 45 U.S.L.W.

4464 (U.S. May 23, 1977). In that case the appellee was sub-

poenaed to testify before the grand jury she was a target of the grand

jury and was ly to be indicted. She was warned of her right

against self-incrimination, but she nevertheless oo false answers to

the incriminating questions. She was prosecuted for perjury.

However, both the trial court and s court suppressed the

testimony after finding that due to her limited understanding of the

English language she had not understood the self-incrimination warn-

ing. That holding rested on the fifth amendment due processes clause.

The appeals court said: “perjurious answers were induced by an un-

fair procedure * * *. That unfairness stems from the threat the pro-

cedure poses to the values protected by the privilege.” United States

v. Wong, supra, No. 74-1636, slip. op. at 2. The upreme Court re-

versed, holding that even in the a al of warnings, perjury is not

justified and a grand jury witness who lies may be The

poe Court ee the appeals court due ere holding: “the

core og aii Gaus oe te eek of Ap-

peals’ holding, in reality relates to ection of values served by

the Fifth yom Ae drown Be wang alia es "Dadead Stasee 9. Wong, supra,

45 U.S.L.W. at 4465.

We agree that in this situation the due process and self-incrimina-

tion claims are basically the same. We have already decided that fifth

amendment values were not endangered by the disclosures, without

warnings, made pursuant to the documentary summons in this case.

— A-ll —

stances Act, and reversed the court of appeals’ holding that the

physician was exempt from prosecution due to his status as a

“registrant” under the Act. /d. at 131. The Court observed that

“{u]nder the Harrison Act physicians who departed from the

usual course of medical practice were subject to the same penal-

ties as street pushers with no claim to legitimacy. * * * There is

no indication that Congress intended to eliminate the existing

limitation on the exemption given to doctors.” (Footnote

omitted.) Jd. at 139.

In this particular case the trial court instructed the jury that

the defendant John D. Plesons was a licensed physician and a

“ ‘practitioner’ within the meaning of Federal law, and entitled

to prescribed [sic] controlled substances within the normal

course of his medical practice.” The court then read portions

of a regulation promulgated pursuant to the Controlled Sub-

stances Act stating the “purpose” of thé issuance of a prescrip-

tion. See 2] C.F.R. § 1306.04(a). The court quoted as follows:

It is further a part of Federai law that “a prescription for a

controlled substance to be effective must be issued for a

legitimate medical purpose by an individual practitioner

acting in the usual course of his professional practice . . .

An order purporting to be a prescription, issued not in the

usual course of professional treatment . . . is not a prescrip-

tion within the meaning and intent (of Federal law) and

the person knowingly filling such a purported prescription,

as well as the person issuing it, shall be subject to the penal-

ties provided for violations of the provisions of law relating

to controlled substances.”

In addition, the court read the entire indictment to the jury.

In the conspiracy count it charged that: “[i]t was a further part

of said conspiracy that John D. Plesons would and did write

prescriptions for Dilaudid and Preludin in the names of persons

referred to him by Peggy Lee Linze and Lawrence Alfred Smith

— A-12 —

well knowing at the time of writing said prescriptions that he

had not treated those patients on the dates reflected on the pre-

scriptions, and knowing that they would not be using the drugs

so prescribed for any legitimate medical purpose.” (Emphasis

added.) This phrase, “not * * * for any legitimate medical pur-

pose” or “legitimate purpose” was repeated throughout the con-

spiracy charge thirty-two times in describing various aspects of

the conspiracy.

The substantive counts charged that “John D. Plesons, M.D.,

a registered physician, knowingly and intentionally, and not in

the usual course of professional practice, did distribute and dis-

pense a quantity of Preludin * * *.” (Emphasis added.) In the

context of the nineteen substantive counts charged, this phrase

was repeated to the jury nineteen times. Moreover, the jury was

next told that “as to each count of the indictment the burden is

upon the Government to prove the charges contained in such

count against the defendant; that burden the Government as-

sumes in the beginning and carries throughout the trial, and the

Government can meet this burden as to each count only by show-

ing to you the guilt of the defendant as to such count beyond a

reasonable doubt.” (Emphasis added.) The jury was instructed

they must believe the acts were intentionally, willfully and know-

ingly done by the defendant. After reading the entire charge we

are convinced the jurors understood that to convict Dr. Plesons

he must have exceeded the bounds of professional practice in

prescribing the drugs beyond a reasonable doubt.

A preferable instruction may have stated the exception more

explicitly, and affirmatively, in the sense that a registrant who

does prescribe in the usual course of professional practice is not

subject to the penalties of that section. See White v. United

States, 399 F.2d 813, 817 (8th Cir. 1968). A clearer statement

of the “exception” is found in United States v. Rosenberg,® 515

6 (t)he law makes it unlawful for any person to distribute a con-

trolled substances [sic] except a practitioner who causes the con-

— A-13 —

F.2d 190, 197 (9th Cir.), cert. denied, 423 U.S. 1031 (1975),

and a similar explanation to a jury should be given for the sake

of clarity. However, considering the instructions as a whole, we

find no prejudicial error in the instruction challenged here. The

instruction given in this case is distinguishable from the jury

charge read in United States v. Carroll, 518 F.2d 187 (6th Cir.

1975), where the court read only statutory definitions such as

“dispense,” “distribute” and “practitioner,” even after the fore-

man had specifically returned to ask on behalf of the jury if

there were any “exceptions” of which they should be aware.

For the reasons set forth above, we affirm the conviction.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIR-

CUIT.

trolled substance to be distributed in the course of professional

practice. If this doctor was causing the controlled substance to

not in faith as a doctor, but

yg ee

and the law is violated

Ta

saw no difference in the

satuory phrase “in the dsual course of profesional practice” and

the regulations’ phrase, “legitimate medical purpose” © agree.

=P

APPENDIX B

United States Court of Appeals

for the Eighth Circuit

No. 77-1132 .

September Term, 1976

United States,

Appellee,

John D. Plesons, M.D..,

Appellant.

Judgment

(Filed August 9, 1977)

Appeal From the United States District Court for the Eastern

District of Missouri.

This Cause came on to be heard on the original designated

record of the United States District Court for the Eastern Dis-

trict of Missouri and was argued by counsel.

On Consideration Whereof, it is now here ordered and ad-

judged by this Court, that the judgment and sentence of the

said District Court, in this case, be, and the same is hereby, af-

firmed.

August 8, 1977