# Petition — Kirk v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2059%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 1048 ## 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.