Petition — Gunduy v. United States

Supreme Court,

Eg FILE

4

MAR

W@HABL BODAK, JR., CLERK

IN THE

Supreme Court of the United States

Octroser Term, 1978

Fermun Gunpvy,

Petitioner,

—against—

Tue Unirep States or AMERICA.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Ronaup P. Fiscuerti

1290 Avenue of the Americas

New York, New York 10019

(212) 586-3732

Counsel for Petitioner

Anne C. Feicus

Of Counsel

March 2nd, 1979

TABLE OF CONTENTS

PAGE

SLES LS ELA TT 1

ENB edenesie-eesesennasenansnesesvecensesenatesasee 1

AES 2

Statutory Provisions Involved .2.....0.........2.......:.cccecceeeseees 2

In dar caches sck ss sccrescenenesovexscnesescescsnoee 2

Reasons for Granting the Writ ...........0..0.0..0.0..0.0......- 5

a anetussannocseranceneceee 7

EE NEES ASS OTT la

TaBLE oF Cases

United States v. Moore, 423 U.S. 122 (1975) ................ 5, 6, 7

United States v. Rosenberg, 515 F.2d 190 (9th Cir.

1975), cert. denied, 423 U.S. 1031 (1975) ....0.0000......... 5

OrHEeR AUTHORITIES

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

EES Sic tt 5

Title 21, United States Code, Section 841(a)(1) ........ 5, 6, 7

IN THE

Supreme Court of the United States

Ocroser Term, 1978

stecceniee

Feriwun Gunovy,

Petitioner,

—against—

Tue Unitrep Srares or AMERICA.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner Feridun Gunduy respectfully prays that a writ

of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Second Circuit,

entered in this proceeding on February 7th, 1979.

Opinion Below

No opinion was rendered by the United States Court of

Appeals for the Second Circuit. The judgment of that court

appears in the Appendix hereto at page la.

Jurisdiction

The judgment of the Court of Appeals for the Second

Cireuit was entered on February 7th, 1979. This petition

for certiorari is being filed within thirty days of that

date. This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

Question Presented

Whether a defendant, engaged in an otherwise legitimate

medical practice, can be convicted of violating Section

841(a)(1) of Title 21, United States Code, without proof

that he trafficked in drugs outside his professional practice?

Statutory Provisions Involved

Title 21, United States Code, Section 841(a)(1) states

as follows:

“$841. Prohibited acts A—Unlawful acts

(a) Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or inten-

tionally—

(1) to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a

controlled substance. . . .”

Statement of the Case

During the period covered by the indictment in the case

at bar, petitioner Feridun Gunduy, a physician licensed

to practice in the State of New York and registered by

the federal government to dispense controlled substances,

was engaged in the private practice of medicine, special-

izing in bariatrics, the treatment of obesity. (A 195; 800-

801)*° To this end, he operated two offices staffed by ap-

proximately ten to twelve professional and non-professional

personnel. Petitioner's practice flourished as indicated by

the approximately 1,200 to 1,300 patients that were treated

_* The letter “A” refers to petitioner’s appendix filed in the

Seeond Cireuit Court of Appeals.

3

each week by the four doctors in attendance, (A 416-417;

472)

The investigation of Dr. Gunduy, which resulted in the

present indictment, began on April 14th, 1976. On the

previous evening, Kugene Biscardi, an individual who per-

formed the functions of a physician in petitioner’s offices,

had been arrested by agents of the Drug Enforcement Ad-

ministration for the sale of some 5,000 amphetamine cap-

sules to an undercover agent. It was uncontroverted that

Biscardi had stolen the pills from one of Dr. Gunduy’s

offices without petitioner’s knowledge or complicity. Two

compliance investigators from the Drug Enforcement Ad-

ministration went to petitioner’s office the following day

to inform him of Biscardi’s arrest. (A 352-353)

When questioned about Biscardi’s duties, Dr. Gunduy

told the investigators that Biscardi was his assistant but

that he, Biscardi, was not a doctor licensed to practice

medicine because the medical school he had attended had

not been properly accredited. Petitioner stated, however,

that Biscardi was awaiting New York license reciprocity.

(A 911-912; 966-975; 999-1000) Indeed, all of petitioner’s

employees, including Dr. Eschwege, who worked side-by-

side with Biscardi, believed him to be a physician. Biscardi

even displayed a medical diploma on his office wall. (A 148;

196; 217; 502; 507; 567; 605-606; 735)

The investigators estimated that during the fourteen

months Biscardi worked for petitioner, he must have “dis-

pensed” 250,000 Deleobese pills, on the basis of employ-

ment records, as well as the average number of amphet-

amine capsiles assumed by the investigators to have been

dispensed daily by each of the four doctors working for

petitioner. (A 908-910; 957-959; 1012) A similar computa-

tion was done for Naheed Hayat, a Pakistani physician

who was not licensed to practice in New York, but who

4

treated petitioner’s patients and prescribed medication.

Consequently, based upon Hayat’s ten months of part-time

employment, it was estimated that she had “dispensed”

25,000 units of Deleobese. (A 960; 1007-1008)*

Counts One and Two of the indictment charged that

petitioner had conspired with Biscardi and Hayat, non-

practitioners, to unlawfully distribute controlled sub-

stances. Counts Three and Four charged that Petitioner

aided and abetted Biscardi’s possession and distribution

of 250,000 Delcobese pills.

The government’s evidence revealed that petitioner ad-

hered to a fixed procedure for determining the advisability

and course of treatment with regard to new patients. Each

new patient was weighed, had his blood pressure taken

and filled out a detailed questionnaire concerning his pre-

vious medical history. As a rule, he or she would also be

given blood and urine tests. It was not until these prelim-

inary steps had been completed that the patient would see

petitioner or one of his associates. The patient would then

be questioned, examined and given several pieces of liter-

ature concerning weight control. (A 210-212; 427; 553;

603 ; 715-716; 718-719; 741) In about ninety percent of the

cases, medication was prescribed to treat the patient’s over-

weight condition. Sixty to seventy-five percent of this

medication was Deleobese, an amphetamine used for the

treatment of obesity. (A 153; 198; 473; 557)

If medication had been deemed by the physician to be

the best course of treatment, he would fill out an inter-

office memorandum slip containing the patient’s name, the

medication, the dosage and the fee for the visit. The pa-

* Because the government failed to introduce sufficient evidence

that Hayat had prescribed Delcobese, the trial court granted peti-

tioner’s motion for acquittal upon Count Two, the only count

pertaining to her. (A 1829)

5

tient would then take this “slip” to a woman at the so-called

dispensing desk in the reception area of the office, who

would give the patient the indicated medication which

had already been packaged by the staff into vials of twenty-

one pills each. The patient at this point was supposed to

sign a dispensing sheet acknowledging receipt of the med-

ication. The employee at the desk would then fill in the

dosage in one of several columns on these sheets, depend-

ing upon the strength of the particular medication dis-

pensed. (A 83-84; 151-153; 199-200; 456-457; 541)

Reasons for Granting the Writ

This case, it is respectfully submitted, raises a serious

question regarding the proper statutory interpretation and

application of a provision of the Controlled Substances

Act (S4 Stat. 1242, 21 U.S.C. §§ S01 e¢ seg.), Title 21, United

States Code, Section S41(a) (1).

The Controlled Substances Act was designed to prevent

the diversion of controlled substances “from legitimate to

illegitimate channels.” United States v. Rosenberg, 515

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

To achieve this end, Congress created an elaborate system

for the registration of those authorized to manufacture,

sell, dispense or otherwise distribute controlled substances,

as well as for the maintenance of records covering the

transfer of such substances. In addition, Congress pro-

vided severe penalties for any unauthorized distribution

or dispensing.

This Court, however, in United States v. Moore, 423 U.S.

122 (1975), held that duly licensed practitioners who are

registered by the Attormey General and, therefore, an-

thorized to dispense controlled substances in conformity

with the Act, possess a limited immunity from prosecution

6

under § 841(a)(1). A practitioner, otherwise immune, be-

comes subject to the harsh penalties of § 841(a)(1) when

the dispensation or distribution of controlled substances

falls outside the scope of a legitimate medical practice and

amounts to common “drug pushing.” It is asserted, there-

fore, that Moore stands for the proposition that when a

drug dealer “masquerades” as a physician and uses his

profession as nothing more than a front for his illegal

activities, the sanctions embodied in § 841 may be utilized

against him.

Such was emphatically not the situation in the case at

bar. Absolutely no evidence of drug trafficking on the part

of petitioner was presented by the government. On the

contrary, the uncontradicted testimony of the government’s

own witnesses tended to establish that petitioner possessed

an extensive, highly successful, legitimate medical prac-

tice, specializing in the treatment of obesity. Patients were

uniformly treated in accordance with fixed medical proce-

dure. In this regard, upon a patient’s first visit to one of

petitioner’s offices, he or she was required to complete an

extensive questionnaire concerning previous medical history

and various tests were routinely administered.

The government, wholly unable to establish that peti-

tioner was the type of “drug pusher” contemplated by

Moore, nevertheless sought to trigger the applicability of

§ 841(a)(1) by charging him thereunder as a consequence

of his employment of two non-practitioners whe illegally

distributed controlled substances. Petitioner respectfully

submits that a practitioner cannot lawfully be convicted of

violating § 841(a)(1) simply upon a showing that he agreed

with or aided a person, who was not authorized to dis-

tribute controlled substances, to distribute the same with-

out additional proof that the distribution agreed to or

aided in was completely outside the practitioner’s legitimate

7

practice and, in effect, was nothing more than illicit drug

trafficking. To permit such prosecutions and convictions

would be to frustrate Congress’ clear intent to exempt prac-

titioners from the coverage of § 841(a)(1) absent a show-

ing of drug trafficking.

For these reasons, the correctness of the decision below

is open to serious question. What is more, the case at bar

presents this Court with a uniaue opportunity to clarify

this ambiguity within the context of Moore, supra, and to

set forth unequivocal criteria for the prosecution of li-

censed practitioners under § 841(a) (1).

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Second Circuit.

Respectfully submitted,

Ronaup P. FiscHerti

1290 Avenue of the Americas

New York, New York 10019

(212) 586-3732

Counsel for Petitioner

Anne C. Feicus

Of Counsel

March 2nd, 1979

APPENDIX

APPENDIX

UNITED STATES COURT OF APPEALS

For tHe Seconp Crecuir

78-1372

At a stated Term of the United States Court

of Appeals for the Second Cireuit, held at

the United States Courthouse in the City

of New York, on the seventh day of Feb-

ruary one thousand nine hundred and

seventy-nine.

Present:

Hon. Watrer R. MANsrFie.p,

Hon. Wituiam H. Timbers,

Circuit Judges,

Hon. Henry F. Werker,

District Judge.

Unrrep Srates or AMERICA,

Plaintiff-Appellee,

Vv.

Freriun Gunovy,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of New York.

la

2a

Appendix

This cause came on to be heard on the transcript of

record from the United States District Court for the East-

ern District of New York, and was argued by counsel.

On ConstperaTion Wuenreor, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed in accordance with the

Court’s oral opinion in open court.

A. Dantet Fvsaro,

Clerk

By:

Artuur HELLer,

Deputy Clerk

———