Petition — Kirk v. United States
Supreme Court brief1978
Ask Donna
What actually matters in this document.
Text
Supreme Court, US», |
[| FILED
i NOV 15 1978
——— Tee RDAK, IR. CLERK
|
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1978
No. me A 8% ~ 8 0 ]
PHILIP E. KIRK, M.D., Petitioner,
versus
UNITED STATES OF AMERICA, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FRANK E. HADDAD, JR.
029 Kentucky Home Life Building
Louisville, Kentucky 40202
/¥ Counsel for Petitioner
November “/, 1978
WESTERFIELD-BONTE CO., 619 W. KENTUCKY—P.O. BOX 3251, LOUISVILLE, KY.
PAGE
CI Soc dec sc ckkdesnascageaves HER emee 1
EN an aha ssa kin'oe 600 6 GSA de ee ha AR 2
A) ee ee AE ee 2
Statutory Provisions Involved ..................... 2- 3
NRT SINE oon only. gs owiacee en ae ualed wells 3- 6
Reasons for Granting the Writ ..................... 7-10
First Question: NO Proof on Crucial Issue....... 7-9
Second Question: Collateral, Prejudicial Evidence
Against Physician ..............seseeeeeeess 9-10
NS iia de Calo aens eee ge ewe SOK seat 11
Eh. Cake neh ENA neees dee ciwy bhs pees kans 13-47
Appendix B (Order Denying Petition for Rehearing) 48
CITATIONS
Cases: PAGH
Bruton v. United States, 391 U.S. 1283 (1968) ...... 10
United States v. Moore, 423 U.S. 122 (1975) ...... 8
Vachon v. New Hampshire, 414 U.S. 478 (1974) ... 7,8
Miscellaneous:
Section 1306.04(a), Zi CP Bh. ccs ccccevecscccccves 4
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1978
No.
Puivie E. Kirk, M.D, - - - - ~~ Petitioner,
v.
UNITED Staves OF AMERICA, - - Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
The Petitioner, PHILIP E. KIRK, M.D., respect-
fully prays that a Writ of Certiorari issue to review
the Order and Opinion of the United States Court of
Appeals for the Sixth Circuit, entered in this proceed-
ing on September 22, 1978.
OPINIONS BELOW
The Opinion of the Court of Appeals entered on
September 22, 1978 (Appendix A) is reported at ——
F, 2d _—. A Petition for Rehearing was filed en banc.
The Order of the Court of Appeals denying the Peti-
tion for Rehearing was entered on October 20, 1978
(Appendix B).
JURISDICTION
The Opinion of the Court of Appeals for the Sixth
Cireuit (Appendix A) was entered on September 22,
1978; and a timely Petition for Rehearing was denied
by Order of the Court of Appeals for the Sixth Circuit
(Appendix B) on October 20, 1978. This Court’s juris-
diction is invoked pursuant to 28 U.S.C. §1254(1).
QUESTIONS PRESENTED
1. Whether a substantive violation of 21 U.S.C.
841(a)(1) cannot be proven, especially as to the crucial
element ‘‘not in the course of professional practice or
for a legitimate medical purpose,’’ absent the testi-
mony of the patient treated, where the physician main-
tains that he observed generally accepted medical
practices.
2. Whether the admission of numerous colorful
and collateral references to ‘‘the drug scene’’ and
‘“‘drug use’’ and ‘‘drug sales’’ are uniquely prejudicial
in light of the offense charged: physician unlawfully
distributing a controlled substance by written prescrip-
tion. [21 U.S.C. §§841(a) (1), 846; 18 U.S.C. §2.]
STATUTORY PROVISIONS INVOLVED
United States Code, Title 21:
§841. Prohibited acts A—Penalties —
(a) Except as authorized by this title, it shall
be unlawful for any person knowingly or inten-
tionally—
3
(1) to manufacture, distribute, or dispense,
a controlled substance.
§846. Attempt and conspiracy
Any person who attempts or conspires to com-
mit any offense defined in this title is punishable
by imprisoninent or fine or both which may not
exceed the maximum punishment prescribed for
the offense, the commission of which was the object
of the attempt or conspiracy.
United States Code, Title 18:
§2. Principals.—(a) Whoever commits an offense
against the United States or aids, abets, counsels,
commands, induces or procures its commission, is
punishable as a principal.
(b) Whoever willfully causes an act to be done
which if directly performed by him or another
would be an offense against the United States, is
punishable as a principal.
STATEMENT OF THE CASE
Petitioner, Dr. Philip E. Kirk, M.D., was convicted
by a jury in the United States District Court for the
Western District of Kentucky at Louisville of forty-
eight counts of an indictment charging violations of
21 U.S.C. §§841(a)(1), 846 and 18 U.S.C. §2. The
first count was a conspiracy count. Counts two
through forty-eight were substantive counts. Peti-
tioner was sentenced to five years imprisonment on
each of the forty-eight counts for which he was con-
victed, the sentences to be served concurrently with
each other, and to pay a total fine of $30,000, Peti-
4
tioner’ was acquitted’ on counts forty-nine through
fifty-three.
Two of the essential elements of the substantive
counts 2-48 are: the prescriptions for controlled sub-
stances issued by petitioner must have been ‘‘not in
the usual course of professional practice’’ and ‘‘not
for a legitimate medical or research purpose.”’
Section 1306.04(a), 21 C.F.R. provides in part 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. The
responsibility for the proper prescribing and dis-
pensing of controlled substances is upon the pre-
scribing practitioner. . . . [Emphasis added.]
In the present proceeding, one patient testified regard-
ing the petitioner’s ‘‘medical purpose’’ and profes-
sional practice’ relating to substantive counts 9-12.
On the basis of this one patient’s testimony, the jury
could have found and did, in fact, find that petitioner
did not issue purported prescriptions for controlled
substances ‘‘in the course of professional practice’’ and
‘‘for a legitimate medical purpose’’ as to counts 9-12.
In the present proceeding, however, no patient was
called to testify regarding the petitioner’s ‘‘medical
purpose” and ‘‘professional practice’’ relating to sub-
stantive counts 2-8 and 13-48. Petitioner at all times
maintained that he observed generally accepted med-
ical practices in treating these other patients who came
to him. The foregoing sets forth the factual basis
underlying reason one for granting this petition.
5
The factual basis underlying reason two for grant-
ing this petition is as follows. The charges being;tried
below involved whether petitioner had unlawfully dis-
tributed controlled substances by writing prescriptions
not for any legitimate medical purpose. However, at
trial, the court allowed numerous instances of alto-
gether different and unrelated evidence to be -intro-
duced against the petitioner.
For instance, evidence relating to drug use, drug
sales, and street drug traffic was introduced. Evidence
about ‘‘shvoting up”’ preludin was introduced in detail.
Note, in part:
Q. Would you explain to the jury what you
mean by shooting preludin?
A. You put them in a spoon and erush them
up—[Objection overruled. ]
Q. Go ahead.
A. You take the preludin, like two pills in a
spoon, and you crush them up and melt the out-
side coating off, and you take a syringe, an insulin
syringe, 1 ec per pill, and you take a mateh and
you light the spoon and heat the water in the spoon
where you crushed them up, and, like the dope,
it all runs, to the middle, and you take a piece of
cotton, and you strain it up in the whit. .. .
[The cotton] takes the cakes out, the impurities,
out from the actual drug.
Then what do:you do?
You take it and-suckit, up, in; the whit.
What is a whit?
Insulin syringe, what diabetics use.
All right.
From there, you make sure there’s no cot-
POoPrPOoOPS
6
ton got through into the syringe, and you just use
the needle to get off.
Q. Where do you shoot yourself?
A. In the arm, right here (indicating).
[T.E. I, pp. 125-127. ]
Evidence about injecting ‘‘speed’’ into the body was
introduced in detail. Note, in part:
Witness Clark: I was doing a lot of speed .. .
Q. When you take this, inject this into your
body, what would it do to you?
A. Well, it give [sic] you an intense sensation,
euphoria, an intense sensation of euphoria. If
you’re tired or fatigued or anything, it gives you,
like, a huge amount of energy, you know. But
this is all like—it’s a false sense of energy, you
know. You can go out and work till you drop, as
a matter of fact, until you kill yourself, as long
as you keep doing it and never know there’s any-
thing wrong with you. You know, you could work
yourself into a heart attack. Or I have—well,
forget this, because it doesn’t have anything to do
with this case. But at any rate, I’ve known sey-
eral people that have died. [T.E. II, p. 238.]
Numerous other detailed examples of testimony de-
scribing street drug traffic and the ‘‘severe toxic as-
pects’’ of drug abuse, equally unrelated to the actual
charges at trial, were also introduced into evidence.
The Sixth Cireuit Court of Appeals affirmed peti-
tioner’s conviction.
REASONS FOR GRANTING THE WRIT
First Question: NO Proof on Crucial Issue:
1. The actual, practical effect of the disputed deci-
sion is that physicians may be convicted of acting ‘‘not
in the course of professional practice or for a legiti-
mate medical purpose’’ completely absent a patient’s
testimony as to what occurred between the patient and
his physican during treatment in a physician’s private
office.
Regarding substantive counts 2-8 and 13-48, NO
PATIENT TESTIFIED as to what occurred between
the patient and the petitioner during treatment in the
petitioner’s private office. The Government did not
call any patient/prescription-recipient named in counts
2-8 and 13-48 to testify.
The jury, thus, did not hear proof of the crucial
element ‘‘not in the course of professional practice or
for a legitimate medical purpose.’’ The petitioner’s
standard of treatment for each of the named patient/
prescription-recipients in counts 2-8 and 13-48 was cer-
tainly of an individuated nature and could only have
been proven ‘‘substandard’’ by the individual patient/
prescription-recipient. No such proof as to this crucial
element was offered.
2. This Court has reversed where no proof of a
erucial element is introduced at trial. See, Vachon v.
New Hampshire, 414 U. 8. 478 (1974):
[A] conviction based on a record lacking any rele-
vant evidence as to a crucial element of the offense
charged violates due process. Id., at 480.
8
The disputed decision did not follow this Court’s rule
of law as stated in Vachon, supra.
3. The conseyuence for other physicians in similar
situations is devastating. If uvheld, the disputed
decision means that other physicians may be convicted
for acts allegedly occurring during treatment in a
physician’s private office where only the physician and
the patient were present, even absent any testimony
whatsoever by the patient. For instance, a physician
may steadfastly maintain that he observed generally
accepted medical practice in treating the patient; the
patient may not even testify ; the physician may, never-
theless, be convicted for acts allegedly done or not done
in private relating to the patient. This question also
presents a serious confrontation issue under the Sixth
Amendment.
4. The disputed decision relied upon this Court’s
opinion in United States v. Moore, 423 U.S. 122 (1975),
to justify petitioner’s conviction. However, in Moore,
the physician conceded that he did not observe gen-
erally accepted medical practices.
Respondent concedes in his brief that he did
not observe generally accepted medical practices.
Td., at 126.
The facts in the present proceeding are diametrically
opposed to the facts in Moore. In the present pre-
ceeding, petitioner has steadfastly maintained that he
observed generally accepted medical practice in treat-
ing the patient/prescription-recipients named in counts
2-8 and 13-48. It is respectfully urged that evidence
9
as to the crucial element ‘‘not in the course of pro-
fessional practice or for a legitimate medical purpose’’
is clearly lacking in this record.
Second Question: Collateral, Prejudicial Evidence Against
Physician:
do. The actual, practical effect of the disputed
decision is that physicians charged in multiple count
indictments involving controlled substances which are
a regular part of their medical practice may be con-
victed unfairly on the basis of collateral digressions
into drug use, drug sales, and street drug traffie wholly
unrelated to the specific offense charged. In the pres-
ent proceeding, numerous colorful and very detailed
digressions into this highly prejudicial area were in-
troduced. These numerous colorful and very detailed
digressions, a few of which are set forth in the State-
ment of Facts above, might have been less harmful in
a trial involving only street drug traffic. A street drug
pusher can deny involvement with controlled sub-
stances altogether. But a physician who regularly pre-
scribes controlled substances in the course of his
medical practice is especially vulnerable to collateral
digressions concerning controlled substances. An inno-
cent physician, innocently prescribing controlled sub-
stances for medical purposes, cannot deny that he has
utilized controlled substances in his medical practice.
The prejudicial implications esealate with the number
of counts charged. In the present case, fifty-three
counts went to the jury.
10
6. This Court has repeatedly reiterated the bed-
rock principle that irrelevant evidence is inadmissible.
An important element of a fair trial is that a jury
consider only relevant and competent evidence
bearing on the issue of guilt or innocence. Bruton
v. United States, 391 U. 8. 123, 131, n.6 (1968).
Irrelevant evidence of drug abuse and its tragic effects
is especially prejudicial when introduced as part of a
case against a physician who is occupationally vulner-
able to a prosecutor’s use of such collateral evidence
because, as a physican, he cannot deny that he regu-
larly employs controlled substances in the treatment
of his patients.
7. The consequences for other physicians in simi-
lar situations is devastating. For innocently utilizing
controlled substances in their everyday medical prac-
tice, physicans are vulnerable to highly colorful and
prejudicial attacks describing drug abuse and its tragic
effects. Physicians are, in a unique sense, occupation-
ally vul:erable to collateral, unrelated evidence of drug
abuse and its effects simply because, unlike other de-
fendants, physicians cannot deny that they do utilize
controlled substances in their work. It is respectfully
urged that evidence relating to collateral drug use,
drug sales, and street drug traffie not germane to the
specific issues on trial should be eliminated in these
eases involving physicians who regularly utilize con-
trolled substances in their everyday medical practice.
This Court is in a proper position to formulate the
needed evidentiary guideline.
11°
CONCLUSION
For these reasons, a writ of certiorari should issue
to review the judgment and opinion of the Sixth
Circuit.
Respectfully submitted,
FRANK E. Happap, Jr.
529 Kentucky Home Life Building
Louisville, Kentucky 40202
Counsel for Petitioner
November I4 1978
APPENDIX
13
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 77-5325
Unirep States or AMERICA, 5
re ApPpe8EAL from the
Plaintiff-Appellee, United States District
‘ Court for the Western
Pump BE. Krrx,. M.D District of Kentucky
“4 . ’ obey ‘3s
Defendant-A ppellant. . at Louisville.
Vv.
Decided and Filed September 22, 1978
Before: Kerru and Merrirv, Circuit Judges, and Crecm,
Senior Circuit Judge.
Crcit, Senior Circuit Judge. This is an appeal by
Philip E. Kirk, appellant, from his conviction before a jury
in the United States District Court for the Western District
of Kentucky at Louisville on forty eight counts of an indict-
ment charging him with violations under Sections 841 (a) (1)
and 846, Title 21, U.S.C. and Section 2, Title 18, U.S.C. The
appellant was sentenced to five years imprisonment on each
of the forty eight counts for which he was convicted, the
sentences to be served concurrently with each other, and to
pay a total fine of $30,000. The appellant was acquitted on
counts forty nine to fifty three.
14
The appellant claims that there is not sufficient evidence
in the record to support the charge of conspiracy in the first
count of the indictment.
Count one of the indictment charged that, from on or
about and before May 1, 1973, until the February 1, 1977
filing of the indictment, appellant conspired with Charlene
White, an employee of appellant, and Robert Forrester, a
dealer of preludin and other amphetamine drugs in Louis-
ville, Kentucky, to commit the following offenses against
the United States:
“1, To unlawfully and knowingly cause others to
possess with intent to distribute controlled substances,
in violation of Title 21, United States Code, Section
841(a)(1), and Title 21, United States Code, Section 2;
“2. To unlawfully and knowingly distribute and cause
to be distributed controlled substances, in violation of
Title 21, United States Code, Section 841(a)(1) and
Title 18, United States Code, Section 2;”
all in violation of Title 21, United States Code, Section 846.
According to the indictment, the conspiracy’s object was
to enable White, Forrester “and others to obtain controlled
substances for personal use and further distribution.” This
object was allegedly accomplished through appellant’s sup-
plying written orders purporting to be prescriptions to
White and Forrester “and others.” These purported pre-
scriptions, issued by virtue of appellant being a physician
licensed to practice medicine in Kentucky with “purported
medical offices” in Louisville, were allegedly “not preserip-
tions issued in the usual course of professional practice” and
did not constitute “preseriptions of a practitioner” within
the meaning of Title 21, United States Code, Section 829.
In furtherance of this conspiracy, the indictment alleged
the following five overt acts:
15
“1, On or about January 5, 1976, in the Western Dis-
trict of Kentucky, the defendant, PHILIP E. KIRK,
M.D., prepared a written order, purporting to be a
prescription for desoxyn, a controlled substance, at the
request of Reverend Father Patrick Delahanty, using
the pseudonym of ‘Leighton T. Creuse’, and the said
PHILIP EF. KIRK, M.D., well knowing at the time said
written order was prepared that the said Father De-
lahanty had no legitimate medical need for desoxyn.
“2. On or about January 9, 1976, in the Western Dis-
trict of Kentucky, the defendant, PHILIP E. KIRK,
M.D., prepared a written order purporting to be a
prescription for desoxyn, a controlled substance, at the
request of Reverend Father Patrick Delahanty, using
the pseudonym of ‘John R. Wilson’, and the said
PHILIP E. KIRK, M.D., well knowing at the time said
written order was prepared that the said Father De-
lahanty had no legitimate medical need for desoxyn.
“3. From on or about May 1, 1973, to on or about
January 1, 1976, in the Western District of Kentucky,
PHILIP E. KIRK, M.D., sold one Charles B. Clark
written orders purporting to be prescriptions for
desoxyn (m ‘thamphetamine), preludin (phenmetrazine
hydrochloride) and other amphetamine substances.
“4. From on or about July, 1975, to on or about Feb-
ruary 29, 1976, in the Western District of Kentucky,
PHILIP E. KIRK, M.D., sold to one Robert Sheffield
approximately three hundred (300) preludin (phen-
metrazine hydrochloride) tablets.
“5. From on or about July 1, 1973, to on or about
February 1, 1976, in the Western District of Kentucky,
the defendam., PHILIP FE. KIRK, M.D., sold to one
Robert Forrester and his associates, their true names
being unknown but using the names of ‘Deborah
16
Bryant’, ‘Ronald Rademacher’, ‘Steve Forrester’,
‘Michael Valuski,’ ‘Bradley Bose’, ‘Floyd Keeton’, and
others to this Grand Jury unknown, written orders
purporting to be prescriptions for an unknown quantity
of preludin (phenmetrazine hydrochloride), desoxgn
(metamphetamine) and other amphetamine and amphe-
tamine-like drugs unknown to this Grand Jury, and
that these drugs were not used for their legitimate
medical purpose, but were sold illegally in the Louis-
ville, Kentucky, area.”
Appellant argues that his conviction under count one of
the indictment cannot stand since there was no proof of any
unlawful agreement to violate the statutes at issue, no proof
of any alleged overt act committed in furtherance of any
unlawful agreement, and no proof of appellant’s knowing
participation in any unlawful agreement. The essence of
appellant’s argument is that the government failed to estab-
lish conspiratorial knowledge on the part of appellant or
his participation therein.
In support of this argument, appellant points out that
one of the alleged co-conspirators, Robert Forrester, de-
scribed in the indictment as “an illegal dealer of preludin
and other amphetamine drugs,” did not testify. In contrast,
however, appellant notes that the other alleged co-con-
spirator, Charlene White, an employee of appellant, did
testify, but testified that she did not enter into any con-
spiratorial agreement with appellant. Finally, with respect
to appellant’s argument of his lack of knowing participa-
tion in any unlawful agreement, appellant points out that
he testified that he never entered into any such agreement
to violate the law. While appellant concedes that certain
witnesses testified they had obtained numerous prescrip-
tions, even under assumed names, from the appellant, ap-
pellant contends that such evidence does not establish that
he knowingly engaged in any conspiracy to violate the law.
17
As stated recently by this Court, in United States vy.
Thompson, 535 F. 2d 1006, at 1009 (6th Cir. 1976),
“The essential elements of conspiracy are:
“1. The conspiracy described in the indictment was
willfully formed, and was existing at or about the time
alleged ;
“2. The aceused willfully became a member of the
conspiracy ;
“3. One of the conspirators thereafter knowingly
committed at least one of the overt acts charged in the
indictment, at or abouvt the time and place alleged; and
“4. Such overt act was knowingly done in furtherance
of some object or purpose of the conspiracy, as
charged.”
In United States v. Dennis Essington Green, 548 F, 2d
1261, at 1266 (6th Cir. 1977), it was stated that
“This court has long recognized that purely cireum-
stantial evidence may be sufficient to sustain a con-
spiracy conviction.”
Moreover, according to Dennis Essington Green, supra,
“The permissible inferences to be drawn from such
(circumstantial) evidence need not be consonant only
with an hypothesis of guilt, U. S. v. Luzenberg, 374
I’, 2d 241, 249 (6th Cir. 1967), providing that the
totality of the evidence is substantial enough to sup-
port a finding of guilt beyond reasonable doubt.”
See also United States v. Van Hee, 531 F. 2d 352, at 358
(6th Cir, 1976), which declared that
“* * * the established rule of this cireuit is that a
finding of guilt may be based on circumstantial evidence
18
which does not ‘remove every reasonable hypothesis
except that of guilt.’ ”
Recognizing that “purely circumstantial evidence may
be sufficient to sustain a conspiracy conviction” in this cir-
cuit, this Court defines “the totality of the evidence * * *
substantial enough to support a finding of guilt beyond a
reasonable doubt” as
“* * * more than a scintilla. It means such relevant
evidence as a reasonable mind might aecept to support
a conclusion. It is evidence affording a substantial
basis of fact from which the fact in issue can be reason-
ably inferred.” UU. S.v. Dennis Essington Green, supra,
at 1266, citing U. S. v. Martin, 875 F. 2d 956, 957 (6th
Cir. 1967).
The rationale of the rule that circumstantial evidence
may amount to such substantial evidence to sustain a con-
spiracy conviction is that
“Inferential proof may be controlling where the offense
charged is so inherently secretive in nature as to per-
mit the marshalling of only cireumstantial evidence.
This is the norm in drug conspiracy prosecutions * * *”
U. S. v. Dennis Essington Green, supra, at 1266 (Em-
phasis supplied)
In addition to the guidelines set out above, with respect
to reviewing a conviction for conspiratorial activity, men-
tion must be made of this Court’s recognition that, as stated
in U.S. v. Dennis Essington Green, supra, at 1266,
“Onee there has been a conviction in a criminal case,
appellate courts are bound to view the totality of the
evidence in the light most favorable to the Govern-
ment. (Citations omitted). Concomitantly, all reason-
19
able inferences must be drawn which are inconsistent
with the verdict. U.S. v. Scales, 464 F. 2d 371, 373
(6th Cir. 1972).”
See also, United States v. Van Hee, supra, stating that
“In testing the sufficiency of the evidence where a jury
has returned a guilty verdict, we are required to view
the evidence in the light most favorable to the govern-
ment.”
It is these evidentiary rules and considerations, there-
fore, which must be applied to the facts of this action to
determine whether the government presented sufficient evi-
dence to establish the four essential elements of conspiracy
enumerated above.
As discussed previously, the first two essential elements
of a conspiracy are that the described conspiracy exists and
that the aceused knowingly has participated therein. The
gravamen of appellant’s argument is that the government
failed to establish either of these two elements. They will
be treated together in this opinion in view of this Court’s
opinion in United States v. Levinson, 405 F. 2d 971, at 985-
986 (6th Cir, 1968), cert. den, 895 U.S. 958 (1969), which
quoted the prior opinion of United States v, Luxenberg,
374 F. 2d 241 (6th Cir. 1967) for the following relevant
propositions at issue in this case:
“Knowledge, like intent, is a factual issue which may
be proved by cireumstantial evidence. Whether a
conspiracy exists is likewise a factual question * * *
It is not fatal to the prosecution’s case that it does not
prove that the defendants knew or participated in every
phase of the unlawful scheme. (Citations omitted.)
Tt is only necessary that a defendant know of the con-
spiracy, associate himself with it, and knowingly con-
tribute his efforts in its furtherance. (Citations
20
omitted.) Participation in a conspiracy need not be
proved by direct evidence. ‘(A) common purpose and
plan may be inferred from a “development and co-
location of circumstances.”’ (Citations omitted.) It
is not necessary that there be a formal agreement in
order to have an unlawful conspiracy. (Citations
omitted.) ‘Almost always, the erime is a matter of
inference, deduced from the acts of the persons ac-
cused, which are done in pursuance of an apparent
criminal purpose.’” (Citations omitted.)
According to this authority, therefore, neither the fact
that Robert Forrester, one of the alleged co-conspirators,
did not testify, nor the fact that the other alleged co-con-
spirator, Charlene White, testified, as did appellant, that
they never entered into any conspiratorial agreement, is
fatal to appellant’s conviction of conspiracy under count
one. As noted in the above-diseussed authorities of this
circuit, participation in a conspiracy need not be proved by
direct evidence, conspiracy almost always being a matter of
inference, deduced from the acts of the persons accused.
Both the fact of the existence of a conspiracy, therefore,
and an aceused’s knowledgeable participation therein, can
be proved by circumstantial evidence. Finally, as stated in
United States v. Van Hee, supra,
«“* * © the established rule of this cireuit is that a
finding of guilt may be used on circumstantial evidence
which does not ‘remove every reasonable hypothesis
except that of guilt.’ ”
Hence, the issue becomes whether, absent the govern-
ment’s producing direct evidence of an agreement to violate
the statutes at issue, and absent direct evidence of appel-
lant’s knowing participation in the conspiratorial agree-
ment, did the government produce sufficient circumstantial
21
evidence from which the jury could have reasonably in-
ferred such agreement and knowledge on the part of appel-
lant.
The voluminous trial transcript in this action reveals
that Richard Ross was employed as the Assistant Executive
Secretary and Pharmacy Drug Inspector for the Kentucky
Board of Pharmacy. In this capacity, Ross was “charged
by the Board to go to all licensed pharmacies in Jefferson,
Oldham and Shelby County (sic)” and to “check preserip-
tions files to see that they are being done according to
pharmacy law * * * We even do a review of the drugs
that are being dispensed in the pharmacy.” Ross testified
that, in the course of his exercising these duties,
“of - *
I did, in fact see drugstores that were selling
and again, in my opinion an unreasonable
quantity of Schedule II drugs, primarily preludin, from
Doctor Kirk.”
~ * «
Ross felt that “there were such a large quantity” of con-
trolled drugs being dispensed pursuant to appellant’s pre-
scriptions, “that I passed this to Narcotic and Drug
Control for their review.” According to Ross, there were
approximately 200 drug stores in Jefferson County, Ken-
tucky, and
“vou could find them (prescriptions written by appel-
lant) most every drug store in the beginning (of the
investigation). And, as I went on, there were other
drug stores * * * that would choose not to honor
these prescriptions.”
Perhaps the most damaging portion of Ross’ testimony
with respect to the quantity of prescriptions issued by ap-
pellant for controlled substances was his testimony that
‘
22
«* * * in regard to the numbers of prescriptions for
Schedule II by other physicians, all the other phy-
sicians that were going to that pharmacy in comparison
to Doctor Kirk, in many instances they were * * *
up to maybe 90 percent of Doctor Kirk’s that were
Schedule II and the other pharmacies, then they were
just less than 10 per cent.”
Thus, the government did present evidence on an “un-
usually large quantity” of prescriptions for controlled sub-
stances issued by appellant.
In addition, there was substantial evidence presented to
the effect that such prescriptions for controlled substances
were issued with great frequency to the same individuals.
Larry Whalen, for example, testified that he first went to
appellant’s office in the summer of 1975 to “get a ’script.
My brother was shooting dope at the time.” Whalen testi-
fied that his brother was “Shooting this dope he got from
Doctor Kirk. <Acutally (sic), preindin is the name of it.”
Prior to his initial contact with the appellant, Whalen testi-
fied that he was getting preludin from his brother which he
was selling. Whalen described the manner in which
preludin could be crushed in a spoon, heated in water in the
spoon, inserted into an insulin syringe and injected into the
arm to obtain a type of euphoric energy.
Beginning in August 1975, Whalen testified that
“T went (to appellant’s office) every day. And I
usually averaged getting in and getting over about
three to four times a week.”
Whalen testified that he “had several different IDs”
which he sometimes used to present to appellant’s reception-
ist. With respect to this use of fictitious names and identi-
fications, appellant himself admitted that his patients
frequently used such false names but appellant maintained
23
that he did not know that some patients frequently returned
using different false names.
With respect to appellant’s claimed failure to recail
patients returning to his office using alternative identifica-
tions, Whalen testified, however, that
“Well, let me express it like this. You went there and
Doctor Kirk more or less, not in so many words, I
don’t know how you would actually put it—you know,
he let you know he knows you've been there several—
Hell, you was just there yesterday. You know, he’d
let you know.”
In other words, according to Whalen, “He more or less
related if you ever get busted, it’s you not me.”
Finally, Whalen testified that his arms had “track
marks” on them “Irom shooting dope.” According to
Whalen, these marks were “readily noticeable” and appel-
lant saw them, but continued to provide Whalen with pre-
scriptions for the controlled drugs. When Whalen got such
prescriptions from appellant, he would either “shoot the
preludin” or “Sometimes I'd sell them.”
Whalen eventually cooperated with law enforcement
authorities in investigating appellant. With respect ‘»
these activities, Whalen testified that
“The reason ‘or doing that was, sending me different
places, they knew Doctor Kirk knew I'd been there
before. And I went into Doctor Kirk’s office and I sat
down and this old woman (Mrs. Bevins, an employee of
appellant Kirk) comes out there * * * she comes
back in the Doctor’s office and I’m sitting right beside
the desk and she said, ‘Doctor Kirk, this boy was just
here yesterday.’ Doctor Kirk mumbled-jumbled some-
thing—lI don’t know what he said. And she said, ‘Yeah,
24
9 * @ @
that so-and-so is after those damned pills again.
Doctor Kirk just laughed at her, because he kept filling
it out, gave me a prescription.”
Hence, this testimony indicates that, despite being ap-
prised by one of his employees that Whalen had been in the
office only the previous day seeking a prescription for drugs,
appellant continued to supply Whalen with another pre-
scription for the drugs. Whalen, incidentally, turned over
possession of this particular prescription to narcotics
authorities.
In addition to Whalen, Dennis Thomas testified that he
had gone to appellant “about 30 or 40 times” for diet pills.
Thomas testified that he himself went twice a week, at which
time he got prescriptions. With the pills obtained from
such prescriptions, Thomas testified that he would “shoot
them up.” As Whalen, Thomas testified that his arms also
had “track marks all over them” and that appellant had
seen his arms. Appellant, nevertheless, continued to
provide Thomas with prescriptions to obtain controlled
drugs.
When visiting the doctor in his office twice weekly,
Thomas testified that “I used my same name but different
addresses.” This was “because he wouldn’t give them to
me if I didn’t.”
With respect to the doctor’s requirement of Thomas’ use
of a different address when obtaining prescriptions, Thomas
testified that the doctor kept cards showing such different
addresses. For $20, however, Thomas testified that you
could “get it tore up.”
Further, when visiting appellant’s medical office, Thomas
testified that he took other people with him to obtain pre-
scriptions. Thomas used these prescriptions to obtain
drugs which he would then sell, as did Whalen.
Charles Clark testified that he went to appellant “To ob-
tain amphetamines” although he was not overweight at the
25
time. He testified that, when he visited appellant’s medical
office, he had “track marks” on his arms. In addition, he
observed other patients to have “track marks” on their
arms, Through the prescriptions, he obtained the drugs
preludin and desoxyn. Tor these prescriptions, Clark testi-
fied that he paid appellant $6.00. If, for some reason appel-
lant did not give him a prescription, Clark testified that he
was charged no fee. Accordingly, it seems apparent from
the record that appellant’s patients were paying him for the
prescriptions for the drugs, not for office visits.
When asked to describe the type of people in the waiting
area of appellant’s office, Clark testified that
“ * * a lot of them would be either—the ones who
were really into amphetamines would be fairly emaci-
ated * * * or showing quite a bit of weight loss.
You know, they would be jerky in their movements,
they would be very tense. Those would be the ones
who were under the influence of amphetamines at that
time. The ones who weren't would be lethargic, would
be standing around, you know, and just—well, basically
* * * They wanted in quickly to score (obtain a
presecription).”
With respect to the frequency of his visiting appellant’s
medical office to obtain prescriptions for the drugs, Clark
testified that “* * * over the years I’ve been there maybe
seventy times.” “For a while,” Clark testified that “I was
going in maybe two or three times a week.” Clark described
the atmosphere at appellant’s medical office as “just like old
home week, you know, the people on the outside and the
people on the inside, you knew half of them.”
Patricia Burton testified that she had been twice con-
victed on charges of selling preludin, which pills she ob-
tained through prescriptions from appellant. She testified
that appellant never refused her any requested prescrip-
26
tions. During her visits, she observed that “Every time
I went there, they were the same ones (other patients)
almost.” During the course of her visiting appellant’s med-
ical office, Burton testified that she became good friends
with Charlene White, one of the alleged co-conspirators in
this ease. Prior to Burton’s becoming friends with White,
however, Burton testified that she was required to use false
names after her first few visits to the appellant to obtain
prescriptions. Burton testified, however, that Charlene
White assisted her in conjuring up such fictitious names.
As testified by Burton,
“T used an ID when I first went there. Then a couple
of times I was beginning to run out of names and ad-
dresses, and she (Charlene White) helped me make up
an address a couple times, I wean, we just made up
a name.”
After becoming good friends with White, Burton testi-
fied that “I didn’t have to use IDs then.”
With respect to the frequency of her office visits, Burton
testified that
“Well, I went two weeks then after I went the first two
times for Miss Neeley, I went two weeks after that for
myself. And I went back about another two weeks and
then I started going once a week, then twice a week.
One evening I went in about—he opened up about six
o’clock, I was there. And then he opened up at eleven
o’clock the next day, and I was there again.”
Despite the proximity in time of her visits, particularly
the last two described above, Burton testified that she had
no difficulty in getting prescriptions from appellant. With
repect to her use of the pills obtained pursuant to the pre-
scriptions, Burton testified that “I took maybe two or three
of them. I sold the rest.”
27
Burton testified that, even after she was arrested for
selling drugs, she went back to the appellant’s office for pre-
scriptions four or five times. At this point, Burton testi-
fied that
“oe * &
(Charlene White) told me that I was going to
have to stop coming in, you know, things were hot and
I didn’t want to get Doctor Kirk in trouble and she
didn’t want to get in no trouble and that I couldn’t
afford any more trouble.”
With respect to the cards about his patients which ap-
pellant kept, Burton testified that |
“(Charlene White) told me one day that I called her
at home that they (police narcotic detectives) had been
in that day and that the heat was on and things was
going to have to slow down a little bit and for me not
to worry, that all my cards was taken care of where
I went in under different names, that they had all these
taken out of the file.”
Richard Hise, a detective with the Jefferson County,
Kentucky Police Department, testified that his duties in-
cluded being assigned to the Narcotics Section of the
County Police Department. In the performance of these
duties, he participated in an investigation of appellant in
an undercover capacity beginning in April, 1975. Hise’s
assignment was to make purchases of drugs from individ-
uals who were dealers, obtain information about these drug
cases, prepare evidence about the cases, and record the evi-
dence for later testimony in court action.
During his investigation, when making such purchases,
Hise testified that he “learned on the street * * * that’
instead of buying from individuals and paying a higher
price that I could go down and possibly get into the Doc-
tor’s office, get a prescription for the preludin and not have
|
28
to pay the high street price * * *” Accordingly, Hise
made contact with individuals selling drugs on the street
and went with them to appellant’s office. The dealers
would then sell the pills to Hise which they obtained at the
pharmacy through prescriptions issued them by appellant.
Hise testified that, in 1975, he himself visited appellant's
office in an attempt to be admitted as a patient “* * *
after I became, apparently became, known down there.
I didn’t realize it at the time.” His attempt was foiled,
however, when Charlene White recognized his false identi-
fication as the name of a person Hise had used at appel-
lant’s office on occasion. Hise later discovered next to the
fictitious name on an index card kept by appellant was writ-
ten in red letters “Do Not admit, Nare.”
The foregoing excerpts of evidence presented in the trial
court include sufficient evidence to support appcllant’s con-
viction of conspiring to “cause others to possess with in-
tent to distribute controlled substances,” and to “knowingly
distribute and cause to be distributed controlled substances”
in violation of 21 U.S.C. 841(a)(1). As stated previously,
the fact of a conspiratorial agreement may be properly
inferred from circumstantial evidence. Such circumstantial
evidence in this action.consists in the large quantities of
controlled substances dispensed pursuant to prescriptions
issued by appellant, the frequency with which he issued
such prescriptions, and the repeated issuance of such pre-
scriptions to the same individuals, even individuals with
visible “track marks” on their arms. There was also testi-
mony to the effect that appellant required his repeat
patients to use different names and/or different addresses
for purposes of appellant’s medical records, and that such
records could be destroyed at the request of a patient, if
he paid a fee. This testimony, together with the testimony
relative to appellant’s employee, Charlene White, taking
precautions to avoid allowing narcotic detectives to see
29
appellant, is supportive of an inference of a conspiratorial
agreement.
Similarly, appellant’s knowledge that such controlled
substances were being redistributed by his “patients” could
be reasonably inferred from these factors. Simply stated,
appellant must have known that the individuals to whom he
issued such frequent prescriptions, could not be using such
large quantities of drugs for their own medical welfare. In
addition, in appellant’s supplying controlled substances to
patients with “track marks”, the jury might reasonably
have inferred that appellant knew his patients were selling
the excess drugs to support any narcotic addiction they
might have. From these factors, the jury could have in-
ferred appellant’s intent to violate the statutes at issue.
Further, the evidence that appellant issued a prescription
to Whalen, despite the protestations set out above of his
employee, Mrs. Blevins, also lends itself to the reasonable
inference that appellant knowingly and intentionally par-
ticipated in a conspiracy to distribute controlled substances.
In addition, the jury could have reasonably inferred the
existence of a conspiratorial agreement from evidence pre-
sented with respect to the actions of Charlene White, appel-
lant’s receptionist and alleged co-conspirator. This evi-
dence, as discussed above, indicated that White assisted
persons in conjuring up fictitious names, that she warned
known narcotic dealers not to come to appellant’s office when
“things were hot,” and that she destroyed medical records
of patients’ visits for a fee. While it is arguable that none
of this evidence directly established an agreement between
her and appellant, the employer, employee relationship ex-
isting between them in addition to her actions discussed
above, including ker refusal to admit to appellant’s office
one known by her to be a narcotics agent, support the oppo-
site conclusion.
As discussed previously, in testing the sufficiency of the
evidence to support a jury verdict of guilty, a reviewing
30
court is required to view the evidence in the light most
favorable to the government. Glasser v. United States, 315
U. S. 60 (1942); United States v. Van Hee, supra. More-
over, as discussed previously, the established rule of this
circuit is that a finding of guilt may be based on cireum-
stantial evidence which does not “remove every reasonable
hypothesis except that of guilt.” United States v. Van Hee,
supra, at 358. See also United States v. Dennis Essington
Green, supra, at 1266, stating “the permissible inferences to
be drawn from such evidence nee? not be consonant only
with an hypothesis of guilt.”
With respect to appellant’s argument that “overt acts
alleged in the conspiracy count were not proven,” it is noted
that this circuit requires only that “at least one of the overt
acts charged in the indictment” be committed by one of the
conspirators. United States v, Thompson, 533 F, 2d 1006,
1009 (6th Cir. 1976). As to the overt acts charged in the
indictment, appellant concedes in his brief that Father Dela-
hanty received three prescriptions from appellant. And, as
discussed previously herein, Charles Clark testified that he
received numerous prescriptions from appellant. (See
Overt Act No. 3 in the indictment.) Appellant also con-
codes that Robert Sheffield testified that he had received pre-
scriptions for controlled substances from appellant. (See
Overt Act No. 4 in the indictment.) .
Hence, with respect to the sufficiency of the evidence to
support appellant’s conviction by jury of conspiring to vio-
late certain narcotic statutes, this ease falls within the fol-
lowing language of U. S. v. Dennis Essington Green, supra,
at 1266:
“Inferential proof may be controlling where the offense
charged is so inherently seeretive in nature as to per-
mit the marshalling of only cireumstantial evidence.
This is the norm in drug conspiracy prosecutions
* * * (Emphasis supplied)
31
We conclude that there is sufficient evidence in the rec-
ord to support the verdict of the jury, guilty of conspiracy
as charged in the first count of the indictment. We affirm
the conviction on this count and its sentence of five years
imprisonment and $3,000 fine,
The appellant claims that there was not sufficient evi-
dence to support the convictions on charges contained in
the substantive counts two through furty eight. Each of
counts two through forty eight charged appellant with hav-
ing caused the distribution of a controlled substance, by
issuing a written order, purporting to be a prescription,
for a named individual, not in the usual course of profes-
sional practice or for legitimate medical or research pur-
pose, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2.
Appellant first argues that his convictions on the charges
contained in counts two through forty eight are unsup-
ported by sufficient evidence because
“the record does not reveal any relevant evidence as to
the * * * crucial clement ‘not in the course of pro-
fessional practice or for 9 legitimate medical reason. ”
Appellant points out that he testified from his office records
that he had only written prescriptions for patients in the
course of professional practice and for legitimate medical
reasons. According to appellant, the only persons who
could have established to the contrary were those individ-
uals named in the various counts at issue as having been
issued the prescriptions not in the course of appellant’s pro-
fessional practice or for a legitimate medical reason.
In this regard, appellant points out that the prosecution
does not present any testimony from the following persons:
“Roy Rogers” named in counts two and three as having
been wrongfully issued a prescription by appellant; “Joe
Price,” named in counts four and five; “Mrs. Carmen
Price” named in counts six, seven and eight; “Gerald
32
Murphy,” named in counts thirteen, fourteen and fifteen,
“Harry Houchins,” named in counts sixteen, seventeen and
eighteen; “Kermit Caswell,” named in counts nineteen,
twenty, twenty one and twenty two; “Joseph Moore,” named
in counts twenty three, twenty four, twenty five and twenty
six; “Patsy Lepard,” named in counts twenty seven, twenty
eight and twenty nine; “Mike Lewis,” named in counts
thirty and thirty one; “Jim Lewis,” named in counts thirty
two, thirty three,' thirty four, thirty five, thirty six, thirty
seven, thirty eight, thirty nine and forty; “Dan Crump,”
named on counts forty one, forty two, forty three and forty
four; “Danny Crump,” named in counts forty five, forty six,
forty seven and forty eight.
The prosecution, however, did present Larry Craig who
was named in counts nine, ten, eleven and twelve as having
been wrongfully issued prescriptions on specific dates for
preludin (counts nine, ten and eleven) or for desoxyn (count
twelve) which prescriptions were not issued in the usual
course of appellant’s professional practice or for a legiti-
mate medical or research purpose. According to appellant,
however, Craig’s testimony only “* * * demonstrates
that the treatment of the witness Craig was for a legitimate
medical reason, that it (sic), weight control.”
Craig testified that he first saw appellant in early 1975
and last saw him in the summer of 1976. During this period
of time, Craig testified that he saw appellant 25 or 30 times
at intervals of 2 or 3 times a month. None of these visits,
according to Craig, was for consultation with appellant for
a legitimate medical problem. Craig testified that “T just
didn’t trust him for personal medicine, at least.” Instead,
Craig testified that he saw appellant to obtain prescriptions
for “speed.”
1Count thirty three names ‘‘ Jas. Lewis’’ as having wrongfully
been issued a prescription. Apparently a typographical error 1s
involved.
33
When Craig first began seeing appellant, he testified
that appellant’s receptionist was an “older woman” named
Pearl. Craig testified that he “told her I wanted to see the
doctor so I could lose some weight.” He would then wait
for long periods of time among other individuals waiting to
see the appellant. Craig testified that these other individ-
uals “looked like hippies, you know, long hair, old ragged
jeans, stuff like that, most of them.” ith respect to the
type of examination given him at these office visits, Craig
testified that the receptionist “* * * usually took my
weight and then the doctor would take my blood pressure
and that was about all I can remember, just the weight and
blood pressure.” Other than that, Craig testified that the
doctor did nothing but “tell me what I could and couldn't
eat.” In this regard, Craig testified that appellant told him
““ * * to stay off of stuff like beer and highballs, pizzas,
spaghetti, starch foods, stuff like that.”
According to Craig, however, appellant never checked
his heart, never asked Craig about the nature or extent of
his weight problem, never asked Craig if he had a history of
heart trouble or of thyroid disease, and never warned Craig
oc the dangers of drugs prescribed by him. Nor, according
to Craig, did appellant ever ask him about Craig’s allergies
in general, or, in particular, whether Craig had any allergy
to any type of medication.
Despite this, however, Craig testified that appellant
would give him his choice of drugs from among preludin,
desoxyn or eskatrol. Craig testified that after he told
appellant “I wanted preludin,” appellant would “Write me
out a seript for preludin.” On each occasion when Craig
received a prescription from appellant, Craig testified that
appellant’s fee was $6.00. If he did not, for some reason,
obtain a prescription during one of his office visits, Craig
testified that he did not have to pay appellant any money.
Craig testified that, on one occasion, appellant “did look
at the (height-weight) chart once and turned me down
34
* * During this office visit, Craig testified that appel-
lant “told me that in order to get the prescription, I would
have to—I would have to be overweight * * *” Accord-
ingly, Craig testified that he thereafter returned to appel-
lant’s office wearing plastic ankle weights, in order to weigh
enough according to the height-weight chart, in order to
appear overweight. Craig denied ever having told appel-
lant or his receptionist about wearing these weights in
order to obtain any prescription. In addition to this use of
ankle weights, Craig testified that “Once or twice” he used
the name “Joe Mason” during an office visit to obtain a
prescription for the controlled drug.
Four particular prescriptions were shown by the prose-
cution to Craig who testified that “I’m pretty sure those are
my prescriptions.” He identified the prescriptions as ones
he had received from the appellant. These four prescrip-
tions formed the basis for the prosecution in counts nine,
ten, eleven and twelve as having been wrongfully issued to
Craig by appellant not in the usual course of professional
practice or for a legitimate medical or research purpose, in
violation of 21 U.S.C, 841(a) (1).
Paul Johnstone, a Compliance Investigator for the
United States Department of Justice Drug Enforcement
Administration, identified each of the four prescriptions as
ones which he had inspected and removed from the pre-
scription files of drugstores during an investigation of
appellant’s writing prescriptions for the drugs preludin and
desoxyn. During the period of May 1, 1973 until May 25,
1976, Johnstone testified that the investigation revealed
appellant had issued 5,373 prescriptions for prelndin which
were taken to these drugstores, and 1,827 prescriptions for
the drug desoxyn.
Two of the essential elements of the substantive counts
from two to forty eight are: The prescriptions issued by
the appellant to various persons must have been “not in the
30
usual course of professional practice” and “not for a legiti-
mate medical or research purpose.”
It has been held that there is no difference in the mean-
ings of the statutory phrase, “In the usual course of pro-
fessional practice” and the regulations’ phrase, “legitimate
medical purpose.” U.S. v, Plesons, 560 F. 2d 890, 897 (Sth
Cir, 1977); U. S. v. Rosenberg, 515 F. 2d 190, 197 (9th Cir,
1975), cert. den, 423 U.S. 1031.
See, 841(a) (1), 21 USC, of which appellant was charged
with violating, provides that,
“Except as authorized by this subchapter, it shall be
unlawful for any person knowingly or intentionally (1)
to * * * distribute * * * a controlled substance.”
Sec. 1806,04(a), 21 C.F.R. provides,
“A prescription for a controlled substance to be effee-
tive must be issued for a legitimate medical purpose by
an individual practitioner acting in the usual course of
of his professional practice. The responsibility for the
proper prescribing and dispensing of controlled sub-
stances is upon the prescribing practitioner, * * *”
The burden of proof is upon the government to prove
these elements. United States v. Black, 512 F. 2d 864, 867
(9th Cir., 1975) ; United States v. Clifford T. Greene, et al.,
511 F. 2d 1062, 1069, 1072 (7th Cir. 1975), cert. den. 423
U.S, 1031; United States v. Carroll, 518 F, 2d 187, 189, 207
(6th Cir. 1975).
While physicians are exempt from the provisions of the
drug abuse statutes when they dispense or prescribe con-
trolled substances in good faith to patients in the regular
course of professional practice, they are liable to prosecu-
tion under See. 841, 21 U.S.C. “* * * when their activities
fall outside the usual course of professional practice.” U.S.
v. Moore, 423 U.S. 122, 124 (1975). See also U. S. v. Rosen-
36
berg, 515 F. 2d 190 (9th Cir, 1975), cert. den. 423 U. 8. 1031
(1976); U. S. v. Ellzey, 527 F, 2d 1306 (6th Cir, 1976).
No reported decision sets out specific guidelines of what
is required to support a conclusion that an accused acted
outside the usual course of professional practice in issuing
prescriptions for controlled substances, The decisions re-
flect a case by case analysis of evidence to determine
whether a reasonable inference of guilt may be drawn from
specific facts,
The Supreme Court in U.S, v, Moore, supra, at 143, said,
“The evidence presented at trial was sufficient for the
jury to find that respondent’s conduct exceeded the
bounds of ‘professional practice,’ (Footnote omitted.)
As detailed above, he gave inadequate physical exami-
nations or none at all, He ignored the results of the
tests he did make, He did not give methadone at the
clinie and took no precautions against its misuse and
diversion, He did not regulate the dosage at all, pre-
scribing as much and as frequently as the patient
demanded. He did not charge for medical services
rendered, but graduated his fee according to the num-
ber of tablets desired, In practical effeet, he acted as a
large-scale ‘pusher’—not as a physician.”
One or more of the foregoing factors, or a combination
of them, but usually not all of them, may be found in re-
ported decisions of prosecutions of physicians for issuing
prescriptions for controlled substances exceeding the usual
course of professional practice, Consider the testimony of
Larry Craig in the light of this quotation from the Supreme
Court. In determining the standard of practice of the
appellant, the jury had a right to consider all of the evi-
dence before the court bearing on the subject.
In addition to the testimony of Larry Craig, and other
witnesses as hereinbefore stated, the government presented
37
expert testimony of two physicians, Dr. Wm. P. Von der
Haar and Dr. Lawrence Green, part of whose testimony was
relative to the issue of the generally acceptable standards
of medical practice for issuing prescriptions for the drugs
preludin or desoxyn for the treatment of obese patients.
Such testimony as to the traditional procedures and tech-
niques followed by physicians is entirely permissible. See,
eg. U.S. v. Clifford T. Green, et al., supra, at 1073, cert.
den, 423 U.S, 1081, U.S. v. Davis, 564 F, 2d 840, at 845 (9th
Cir, 1977), cert, den, 98 8. Ct. 733, (Jan, 9, 1978), U.S. v.
Bartee, 479 F, 2d 484, at 488 (10th Cir, 1973),
In essence, the doctors testified that at a minimum, a
medical history should be taken from each patient, a phy-
sical examination given and certain laboratory tests per-
formed when indicated, before any physician should issue
any prescription for the drugs. They testified about the
importance of ascertaining from the patient the nature and
extent of the patient’s supposed weight problem in addition
to the importance of questioning the patient about any
allergies in general or to specific medication to eliminate
the possibility of any adverse reaction to a prescribed drug.
The importance of learning about any medications being
currently taken by the patient wae stressed since appetite
suppressants in combination with other drugs could produce
an adverse reaction such as fatal high blood pressure, grand
mal epileptic seizure or insulin reaction in diabeties. In
addition, knowledge of whether the patient has had a history
of heart trouble should be obtained by the physician since
the drugs could cause a fatal stroke or heart attack, And
whether or not the patient has a history of thyroid disease
should be learned since, if the patient should have a “low
thyroid” the drugs would not affect the obesity, and if the
patient had hyperthyroidism, the drugs would tend to cause
additional problems such as an elevated blood pressure,
The doctors also testified about the importance of ad-
vising the patients of the dangers of the drugs, particularly
38
if the prescribed dosage were altered. Possible side effects
of the drugs identified by the doctors included severe dis-
ruptions of the gastro-intestinal tract, severe skin rashes,
heart attacks and hallucinations, or psychotic or homicidal
reactions.
Dr. Green was asked whether
«“* * * in the treatment of obese patients, would the
mere weighing of the patient, the taking of the blood
pressure of the patient and the referral to a diet chart,
would that be within the generally accepted medical
practice in the treatment of obese patients?”
Dr. Green replied;
“No, I'd say that would fall far below the minimum that
would be necessary.”
Four physicians, Arthur Hurst, F, G. Plymale, Norvin
Casper, and Ben Reid testified on behalf of the appellant.
Three of these doctors testified that appellant’s reputation
for honesty and good moral conduct was good, One doetor
tostified that he did not know that the Jefferson County
Medical Society had instituted disciplinary proceedings
against the appellant. One other doctor said he had heard
of the disciplinary proceedings. With qualifications all four
doctors approved the appellant’s standard of medical
practice,
This conflict in medical testimony presented questions of
fact for the jury to determine, This testimony was suf-
ficient from which the jury could have drawn inferences
that the issuance of prescriptions for controlled drugs was
not in the usual course of professional practice or for a
legitimate medical or research purpose.
We conclude from all the evidence in the record per-
tinent to counts nine, ten, eleven and twelve, that it is
39
sufficient from which the jury could have reasonably in-
ferred that the appellant was guilty as charged.
In United States vy. Dye, 508 F. 2d 1226, 1231 (6th Cir.
1974) cert. den, 420 U. S. 974 (1975), we said,
“It is well settled in this jurisdiction that it is not
necessary that circumstantial evidence remove every
reasonable hypothesis except that of guilt.” (See also
United States v. Van Hee, supra.)
In addition to the 5-year concurrent prison terms on
* these counts, the district judge assessed a fine of $3,000 on
each count.
We affirm the convictions on these counts.
We have previously indicated that there is sufficient
evidence from which the jury could infer that the appellant
issued prescriptions, to individuals for controlled sub-
stances, not in the course of professional practice or for a
legitimate medical or research purpose. These are ele-
ments of substantive counts two through forty eight, in-
elusive, Another essential element in these counts is that a
prescription was issued to a specific person in each count,
unlawfully and knowingly for the purpose of distributing
controlled substances as classified by Section 812, 21 U.S.C.
The appellant claims that the convictions on counts two
through eight and thirteen through forty eight should fail
for the reason that the persons alleged to have received the
prescriptions did not testify. Paul Johnstone, a Compliance
Investigator for the United States Department of Justice,
Drug Enforeement Administration, testified that he had
gathered prescriptions from pharmacies to which appel-
lant’s patients had taken them, He testified that the pre-
scriptions which he identified and which were introduced as
exhibits related to the respective counts of the indictment
returned by the grand jury.
40
Mr. Johnstone identified prescriptions purporting to
have been issued by the appellant as follows: To Roy
Rogers on November 11, 1975 and December 12, 1975,
counts two and three; to Joe Price on January 7, 1976 and
March 1, 1976, counts four and five; to Mrs. Carmen Price
on January 5, 1976, February 6, 1976 and March 10, 1976,
counts six, seven and eight. (Counts nine, ten, eleven and
twelve have been previously discussed.) To Gerald Mur-
phy, November 14, 1975, December 15, 1975 and February
14, 1976, counts thirteen, fourteen and fifteen; to Harry
Houchins on January 28, 1976, May 16, 1975, April 16, 1975,
counts sixteen, seventeen and eighteen; to Kermit Caswell
on March 9, 1975, count nineteen; to Mrs. Kermit Caswell
on August 18, 1975 and May 22, 1976, counts twenty and
twenty one;? to Kermit Caswell on May 25, 1975, count
twenty two; to Joseph Moore on May 11, 1974, to Joseph
Allen Moore on April 12, 1975, to Joseph Moore on Novem-
ber 4, 1974, to Joseph Allen Moore on June 2, 1975, counts
twenty three, twenty four, twenty five and twenty six; to
Patsy Lepard on April 23, 1975, May 25, 1975 and June 30,
1975, counts twenty seven, twenty cight and twenty nine;
to Michael Lewis on December 3, 1973, to James Mike Lewis
on January 11, 1974, counts thirty and thirty one; to Jim
Lewis on February 8, 1974, to James Lewis on February 15,
1974, to Jim Lewis on March 8, 1974, March 8, 1974, to
James Lewis, January 24, 1976, October 8, 1975, September
2, 1975, June 7, 1975 and April 26, 1975, counts thirty two,
thirty three, thirty four, thirty five, thirty six, thirty seven,
thirty eight, thirty nine and forty; to Dan Crump on May
14, 1973, Aueust 1, 1973, October 19, 1973, November 39,
1973, January 11, 1974, February 11, 1974, March 23, 1974
and June 12, 1974 counts forty one, forty two, forty three,
forty four, forty five, forty six, forty seven and forty eight.
°The indictment charges that in counts twenty and twenty one
the prescriptions were issued to Kermit Caswell. Mr. Johnstone
testified that they were issued to Mrs. Kermit Caswell.
41
These prescriptions were all issued on the prescription
blanks of the appellant.
Appellant admitted that he had issued the following
prescriptions but claimed that he had issued them for a
legitimate medical purpose: four, five, six, seven, eight,
nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,
seventeen, eighteen, nineteen, twenty, twenty one, twenty
two, twenty four, twenty five, twenty six, twenty seven,
twenty eight, twenty nine, thirty two, thirty six, thirty
seven, thirty eight, thirty nine and forty.
As to counts two, three, twenty three and thirty three,
he said, “I don’t believe it is (my signature) but I can’t
guarantee it.” Counts thirty and thirty one, the appellant
testified: “These are close. I wouldn’t * * * I'd hesi-
tate to say (whether these are my genuine signatures) on
these.” With reference to counts thirty four and thirty five,
he testified: “I can’t be definite on these two.”
Concerning the prescriptions involved in counts forty
one through forty eight alleged in the indictment to have
been issued to Dan Crump, he testified that:
“We were not able to find a Dan Crump. And my girl
went through the registry, and we found that he had
been in three or four times, but all the rest of them,
there was no record of him even being in.”
Appellant made no specific denial with respect to counts
forty two, forty seven and forty eight.
Appellant testified with reference to the following pre-
scriptions:
Forty three, “I don’t think” I issued that prescription.
Forty four, the prescription “looks pretty good.”
Forty five, “I’m skeptical of” its being my writing.
Forty six, “I don’t think” it is my writing on the pre-
scription.
42
There is some evidence by the appellant that some of the
prescriptions were forged on a prescription pad stolen from
his office. We consider this matter subsequently in this
opinion,
We conclude that there is ample evidence from which the
jury could find that the appellant issued prescriptions to the
specific persons named in counts two to forty eight inclusive
and that they were not issued in the usual course of profes-
sional practice or for a legitimate medical or research
purpose.
The trial judge assessed a fine of $3,000 against the
appellant in each of counts two, three, five, thirteen and
fourteen.
In addition to affirmances heretofore made on counts
one, nine, ten, eleven and twelve, we affirm the convictions
on counts two to eight and thirteen to forty eight.
These affirmances are subject to consideration of the
further alleged errors of law concerning the admission of
testimony and the instructions of the court to the jury.
It is claimed, on behalf of the appellant, that the trial
court erred in allowing the prosecution to cross examine
certain defense witnesses concerning their knowledge of
pending professional disciplinary proceedings against the
appellant. The defense called four doctors who testified as
to the good character of the appellant. On cross examina-
tion they were asked if they knew that the Jefferson County
Medical Society had instituted disciplinary proceedings
against the appellant. There is no merit to this alleged
ground of error. The Supreme Court said, in Michelson v.
United States, 335 U. 8. 469, 479 (1948),
“The price a defendant must pay for attempting to
prove his good name is to throw open the entire subject
which the law has kept closed for his benefit and to
make himself vulnerable where the law otherwise
shields him. The prosecution may pursue the inquiry
with contradictory witnesses to show that damaging
ee
—s
43
rumors, whether or not well-grounded, were afloat—
for it is not the man that he is, but the name that he has
which is put in issue, Another hazard is that his own
witness is subject to cross-examination as to the con-
tents and extent of the hearsay on which he bases his
conclusions, and he may be required to disclose rumors
and reports that are current even if they do not affect
his own conclusions. It may test the sufficiency of his
knowledge by asking what stories were circulating con-
cerning events, such as one’s arrest, about which people
normally comment and speculate. Thus, while the law
gives defendant the option to show as a fact that his
reputation reflects a life and habit incompatible with
commission of the offense charged, it subjects his proof
to tests of credibility designed to prevent him from
profiting by a mere parade of partisans.
The trial judge properly instructed the jury on the ap-
plication of this testimony.
In a further claim of alleged error in the admission of
evidence, the appellant challenges what he terms the “effu-
sion of unrelated and prejudicial evidence (dealing) with
‘the drug scene’ and ‘drug use and sales.’” Specifically,
appellant challenges the relevancy of testimony to the effect
that his patients sold drugs which they had obtained pnr-
suant to prescriptions issued them by appellant. In addi-
tion, appellant argues that the witness Whalen should not
have been allowed to testify about the manner in which
preludin could be crushed in a spoon, heated, drained into a
syringe and injected into his arm in order to obtain a
euphoric high. Thirdly, appellant argues that the witness
Clark should not have been allowed to testify about the
intense sensation of euphoria and false sense of energy
obtained from the drugs, as a result of which he testified
“ * * you could work yourself into a heart attack.
* T’ve known several people that have died.” Finally,
appellant challenges the relevancy of testimony of Doctor
“bt
Green that physicians’ prescriptions are a large source of
drugs used in the drug community, and that the drugs can
have severe toxic aspects.
Considering all of the issues in this ease, including the
charge of conspiracy in which it was charged that the ob-
ject of the conspiracy was for the appellant to supply
written orders purporting to be prescriptions to others to
enable them to obtain controlled substances for personal use
and further distribution, this evidence was relevant.
Tt is claimed on behalf of the appellant that the trial
court erred in allowing the prosecution to call a handwriting
expert as a witness after the close of the defense’s evidence.
The defense argues that it had no prior notice that the
prosecution would submit such testimony and that it was in
conflict with the pre-tria) discovery order. The appellant
had testified that certain prescriptions were forgeries
written from a prescription pad stolen from his office.
A further claim in this connection is that the court
denied appellant’s motion for permission to call a hand-
writing expert on surrebuttal.
We find no abuse of discretion on the part of the trial
court and agree with its ruling,
«“* * * in the first place, in the court’s opinion, that
wouldn’t be surrebuttal because you’ve already proved
by Doctor Kirk that they’re forgeries. They have
merely come in here and contradicted your testimony
* * * on rebuttal. So now you can’t come back again
and buttress your case with additional proof that was
available to you at the start.
o ” *”
“Well, you knew * * * that your doctor was
going to testify they were forgeries.
© * *
“You could have brought an expert to cooperate
with and be consistent with him to show that in an ex-
45
pert opinion he agreed with him that they were
forgeries so I’m going to overrule your motion.”
We find no error to the claim that the court committed
prejudicial error in admitting into evidence certain individ-
ual prescriptions. At the time of the trial the court
limited the prosecution to admitting only the prescriptions
which could be identified by a witness. Before cross ex-
amination by the defense, the court allowed defense counsel
to inspect the prescriptions which were admitted and to
discuss them with his client.
Finally, the appellant objects to the court’s instructions
to the jury. His first challenge is to the following instrue-
tion relative to fabrication or suppression of evidence.
“When a defendant voluntarily and intentionally offers
an explanation or makes such statement tending to
show his innocence and this explanation or statement
is later shown to be false, you may consider whether
this circumstance, the cireumstantial evidence, points
to a consciousness of guilt. Ordinarily, it is reason-
able to infer that an innocent person does not usually
find it necessary to invent or fabricate an explanation
or statement tending to establish his innocence,
“Whether or not evidence as to the defendant’s volun-
tary explanation or statement points to a consciousness
of guilt and the significance to be attached to any such
evidence are, again, matters which are exclusively
within your province.
“Now, an attempt to suppress or fabricate evidence by
a defendant after a crime has been committed is not,
of course, sufficient in and of itself to establish his guilt.
However, you may consider evidence of such an at-
tempt, along with other evidence in the case, in deter-
mining guilt or innocence. Whether or not an attempt
46
at fabrication or suppression of evidence shows con-
sciousness of guilt and the significance to be attached
to any such attempt are matters for you to determine.”
In the second paragraph of these instructions, the trial
judge left it entirely with the jury to determine what weight
should be attached to the appellant’s testimony.
The appellant concedes that these instructions
are almost verbatim to model instructions in Devitt and
Blackmar’s Federal Jury Practice and Instructions (Third
Edition), at Section 15.12 and Section 15.09, respectively.”
(Defendant’s Brief p. 45.) While appellant admits that
such instructions may be appropriate in a proper case there
is no evidentiary basis for them in this ease, Considering
all of the evidence in the voluminous record in this case, we
conclude that there is an evidentiary basis for the instrue-
tion and that there is no prejudice to the appellant because
of it. Further the trial judge left it up to the jury to deter-
mine guilt or innocence as a question of fact.
The appellant’s second challenge to the court’s instrue-
tions to the jury relates to the instruction on intent and
specifically to the use of the sentence, “It is ordinarily
reasonable to infer that a person intends the natural and
probable consequences of acts knowingly done or knowingly
“re * *
omitted.” .
In United States v. Denton, 836 F, 2d 785, 788 (6th Cir.
1964), this Court said,
“This instruction has been recently and vigorously
criticized by the Fifth Cireuit, Mann v. United States,
319 F. 2d 404 (CLA. 5, 1963), cert. denied 375 U.S. 986
* * *(31 Tt has also more recently been held by the
Ninth Cireuit not to constitute prejudicial error under
the whole instruction on intent therein given. Sherwin
v. United States, 320 F. 2d 187 (C.A. 9, 1963), cert.
28ee also United States v. Chiantese, 560 F, 2d 1244 (5th Cir.
1977).
“TS
47
denied 375 U.S. 964 * * * rehearing denied 376
U.S. 946 * * *. We feel that the second sentencel#!
of the instruction quoted above is at best clumsy and,
if taken alone, confusing. On this record, however,
and under a total instruction on intent very similar to
that in the Sherwin case, we do not think the error
affected any ‘substantial right’ of defendant.”
This Court reaffirmed its holding in Denton in United States
v. Releford, 352 F. 2d 36, at 40 (6th Cir., 1966), cert. den.
382 U.S. 984 (1966).
Although courts other than the Fifth Cireuit have been
critical of the instruction, most courts have held that
reversal is not required when the instructions on intent,
taken as a whole, were adequate and sufficiently insured
against the jury’s being misled. In other words, giving the
instruction has been held not to be plain error or reversible
error, without more. See United States v. Haldeman, 559
F, 2d 31, at 116 (D.C. Cir., 1976), cert. den. 97 S, Ct. 2641
(1977) ; Cohen v, United States, 378 F. 2a 751, at 755 (9th
Cir. 1967), cert. den. 389 U. S, 897 (1967); McCarty v.
United States, 409 F, 2d 793, at 799-801 (10th Cir. 1969) ;
U.S. v, Wilkins, 385 F. 2d 465, at 473 (4th Cir., 1967) ;
Moore v, United States, 875 ¥. 2d 877, at 880-882 (8th Cir.
1967).
We hold that the instructions of the trial court on the
subject of intent, taken as a whole, were clear and fair, not
caleulated to mislead the jury, and did not affeet any sub-
stantial right of the appellant.
Further, considering the record as a whole, the evidence
of the appellant’s guilt is overwhelming.
The judgment of conviction in the District Court is
affirmed in all respects.
***So unless the contrary appears to you from the evidence, you
may draw the inference that Mr, Denton isteaded all the conse-
quences which one standing in like circumstances and possessing
like knowledge should reasonably have expected to result from any
act knowingly done or knowingly omitted by him.’’
48
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Unirep States or AMERICA — - - Plaintiff-Appellee
v.
Pum KE. Kimrg, M.D. - - ~- Defendant-Appellant
ORDER—Filed October 20, 1978
Berore: Kerrn and Merritt, Circuit Judges, and Cecit,
Senior Cireuit Judge.
The petition for rehearing with suggestion of rehearing
en bane filed by the defendant-appeliant having come on
for consideration, and none of the Judges of this Court
having favored ordering consideration eu bane, the peti-
tion for rehearing was submitted to the hearing panel.
Upon consideration of the petition for rehearing, the
court concludes that the issues raised therein were fully
considered upon submission and decision of the case, Peti-
tion denied.
K\wrerep By Orper or THE Court
(s) John P. Hehman
Clerk
49
CERTIFICATE OF SERVICE
I hereby certify that on this hah day of November,
1978, three copies of the Petition for Writ of Certiorari
were mailed, postage prepaid, to Hon. Albert S. Jones,
United States Attorney, Post Office and Courthouse Build-
ing, 6th and Broadway, Louisville, Kentucky 40202, and
Hon. Wade MeCree, Solicitor General, Department of
Justice, Washington, D.C. 205380. I further certify that
all parties required to be served have been served.
———- +
RANK EF. Happap, Jr.
52) Kentucky Home Life Building
Louisville, Kentueky 40202
Counsel for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.