# Petition — Gunduy v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2570%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 970 ## Text 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 ——— --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2570%3A1. Public record. Not legal advice.