Opposition — Gunduy v. United States

No. 78-1359

In the Supreme Court of the United States ~ Se

OCTOBER TERM, 1978

FERIDUN GUNDUY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Wape H. McCrek, JR.

Solicitor General

Depariment of Justice

Washington, D.C. 20530

In the Supreme Court of the Hnited States

OcTOBER TERM, 1978

No. 78-1359

FERIDUN GUNDUY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner contends that since he is a_ licensed

physician, he was improperly prosecuted under 21

U.S.C. 84l(a)(1) for aiding and abetting illegal distri-

bution of controlled substances. |

1. After a jury trial in the United States District

Court for the Eastern District of New York, petitioner

was convicted of conspiracy to possess and distribute a

Schedule Il controlled substance, in violation of 21

U.S.C. 846 (Count 1); aiding and abetting the illegal

possession, with intent to distribute, and the distribu-

tion, of a controlled substance, in violation of 21

U.S.C. 84l(ay(l) and 18 U.S.C. 2 (Counts 3 and 4);

knowingly omitting material information from and

furnishing fraudulent information in documents re-

quired to be kept under 21 U.S.C. 827(a), in violation

(1)

ho

of 21 U.S.C. 843(a4) (Counts 5, 6. and &): and

obstruction of justice, in violation of I8 U.S.C. 1503

(Count 9).' Petitioner was sentenced to concurrent

terms of [8 months’ imprisonment on each count, a

special parole term of five years, a fine of $15,000 on

each of Counts |, 3, 4, 5. 6 and 8&8 and a fine of

$5,000 on Count 9. The court of appeals affirmed (Pet.

App. la-2a).

On the evening of April 13, 1976, Eugene Biscardi

was arrested by Drug Enforcement Administration

(DEA) agents, following his sale of 5,000 Delcobese

amphetamine capsules to Richard Rubin, a pharmacist

who was then acting as a government agent (A. 405).-

At the time of Biscardi’s arrest it was determined that

he was an employee of petitioner, who was a medical

doctor (A. 394). On the morning following Biscardi's

arrest, several DEA agents began a routine investiga-

tion of petitioner's business records (A. 236, 802).°

The investigation disclosed that petitioner maintained

two offices for the treatment of obesity (A. 36, 195).

He employed a number of physicans who saw and

treated 1,400 patients weekly; 75 percent of the

patients were receiving Delcobese (A. 153, 548).

Rather than going to a pharmacy, petitioner's patients

received these drugs at petitioner's offices. The

‘Although petitioner was found guilty on all nine counts of the

indictment, the district court subsequently dismissed Counts 2 and

-

/.

“A.” refers to the Appendix on appeal.

‘No evidence was elicited at trial suggesting that petitioner

participated in or was even aware of Biscardi’s street dis-

tributions.

— ——

examining physician would fill out an_ inter-office

memo stating the amount of medication, and the

patient would present this at the dispensing desks and

receive the medication (A. 197, 201).

Biscardi was employed by petitioner to see and treat

patients. The testimony at trial established that

petitioner's employees, as well as his patients, regarded

Biscardi as a medical doctor (A. 147-149, 196, 201, 475,

501-504), and that petinoner told them that Biscardi

was a physician (A. SOS). Biscardi prescribed

Deleobese (A. 201, 502, 908-910) and even had his

own patients, who routinely asked tor him and were

treated by him with Delcobese (A. 204). Biscardi was

not licensed to practice medicine, however, nor was he

registered to prescribe Delcobese (A. 787), and

petitioner knew this (A. 911-912). Petitioner's actions

in assisting Biscardi’s unauthorized dispensing of

controlled substances through petitioner's practice was

the basis of Counts |, 3 and 4 of the indictment.*

2. Relving on United Siates v. Meaore, 423 U.S. 122

(1975), petitioner contends (Pet. 5-7) that a medical

doctor can be convicted under 21 U.S.C. 841(aX1) only

if he “uses his profession as nothing more than a front

for his illegal activities” (Pet. 6). He argues (/did.) that

since he “possessed an extensive. highly successful,

legitimate medical practice.” he cannot be prosecuted

under Section 841(a\1).

*There was also substantial evidence that petitioner tailed to

keep adequate records and falsified records to conceal substantial

discrepancies in inventories of controlled substances. These actions

tormed the basis of his convictions on Counts 5, 6, and & In

addition, he falsified his accounts after the DEA investigation of

his operations began: this action formed the basis of his conviction

for obstruction of justice (Count 9) Petunoner does not challenge

these convictions in this Court.

But Moore makes it plain that the “activities of

registered physicians are [not] exempted trom the reach

of §841 simply because of their status.” 423 U.S. at

131-132. Physicians are subject to prosecution for

violating Section 841 to the extent that they “exceed{ ]

the bounds of ‘professional practice.” 423 U.S. at 142.

In any event, Movre was a case in which the

controlled substance was being dispensed by the

defendant himself, who claimed he was doing so in the

course of his medical practice. Here, on the other

hand, it is undisputed that Biscardi was not a

physician, yet was engaging in the illegal possession

and distribution of controlled substances. Assisting an

individual known to be unlicensed and unregistered in

that individual's criminal distribution of amphetamines*

is in no manner an aspect of the “professional practice”

of medicine. Petitioner’s actions, accordingly, did not

fall within the exception contained in 21 U.S.C. 841

for activities “authorized by this subchapter” (see 423

U.S. at 138-143), and petitioner was properly convicted

for aiding and abetting Biscardi’s violations of 21

U.S.C. 841 (a)(1).

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

WapbE H. McCrek, JR.

Solicitor General

APRIL 1979

‘Petitioner does not contest Biscardi’s liability under Section

841(ay(l). nor that he hired Biscardi, held him out to the public

as a physician, and provided him with office space and

prescription forms.

DOJ-1979-04