Petition — Sarian v. United States

83-774)

No. passe —7

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

HRATCH K. SARIAN, ;

“ Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Richard A. Sprague

William R. Herman

Suite 400, Wellington Bldg.

135 South 19th Street

Philadelphia, Pa. 19103

(215) 561-7681

Counsel for Petitioner,

Hratch K. Sarian

Of Counsel:

SPRAGUE & RUBENSTONE

Suite 400, Wellington Bidg.

135 South 19th Street

Philadelphia, Pa. 19103

(215) 561-7681

TWE LEGAL INTELLIGENCER, 10th & SPRING GARDEN STREETS, PHILA. PA 19123 (215) 236-2008

QUESTIONS PRESENTED FOR REVIEW

1. Whether the decision below was erroneous and

in conflict with those of other circuits that an indictment

charging distribution of or conspiracy to distribute drugs

in violation of the Controlled Substances Act must allege

that the distribution occurred for reasons other than le-

gitimate professional ones, where the person so accused

is,a health professional who is authorized to distribute

controlled substances.

2. Whether the decision below was erroneous and

in conflict with that of the Sixth Circuit in United States

v. Jones that Federal Rule of Evidence 201(g) and the

Sixth Amendment preclude the trial judge in a criminal

case from instructing the jury that it must take as a mat-

ter of law facts which ought to have either been proven

by the prosecution or made the subject of judicial notice,

where those facts are necessary to establish an element

of the offense.!

1. On appeal! to the Third Circuit, petitioner also raised the is-

sue of the sufficiency of the evidence as to each count of the indict-

ment. While petitioner recognizes that this question does not inde-

pendently warrant a request for a writ of certiorari, petitioner would

seek to present it to the Court if certiorari is granted on either or

both of the questions discussed in this petition. =

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .

TABLE OF AUTHORITIES ....).......5028:

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ET 5-5.5.0.5 5108's Bis ice Bee «in

CONSTITUTIONAL AND STATUTORY

PRP WEUURsIN BINVORAVERD 0066 ree eee

STATEMENT OF THE CASE ..............

URS aos i.e sig a eee 8S on raieid-bp so ower

Il.

The Decision Below Conflicts with Those of

Other Circuits that an Indictment which

Charges a Person Authorized to Distribute

Controlled Substances with a Violation of 21

U.S.C. §841(a)(1) Must Allege that the Dis-

tribution Was Not For Legitimate Medical

RE ARS DRE ee a a ney ea

The Decision Below Conflicts with That of

the Sixth Circuit in Jones v. United States,

For It Sanctioned an Instruction which

Charged the Jury to Take as a Matter of Law

Facts which the Jury Should Have Been

REI i re a IE a

Nok wo 6's re alae fa ely GbR een

ii

8-13

TABLE OF AUTHORITIES

Cases: Page

Bollenbach v. United States, 326 U.S. 607 (1945) 18

Bryan v. United States, 373 F.2d 40% (5th Cir.

SE oa ok a wake kee eee 18

Joplin Mercantile Co. v. United States, 236 U.S. 531

OE waist 6 Sse aes 6 cea eee cua 12

Russell v. United States, 369 U.S. 749 (1962) . 11, 12

United States v. Anderson, 528 F.2d 590 (5th Cir. ),

cert. denied, 429 U.S. 837 (1976) .......... 17

United States v. Bartee, 479 F.2d 484 (10th Cir.

ES oie ok. ae hoe e eae eee 10

BRE oo Fa eee ee

eR

ON ores ok ek oko 2 ee ee ee

ER oes Wo oo i nN ee eae i)

United States v. Hall, 552 F.2d 273 (9th Cir. 1977) 15

United States v. Hayward, 420 F.2d 142 (D.C. Cir.

SEER <n 6%0'Gin'e « aha wide ta eee bil aia Eee 18

MRI AAMT age MEM a EN

United States v. Jones, 580 F.2d 219 (6th Cir.

MUMS Su Sto ia inet bie ae e ee eee 16, 17, 18

United States v. King, 587 F.2d 956 (9th Cir. 1978) 10

United States v. Kirk, 584 F.2d 773 (6th Cir. 1978),

cert. denied 439 U.S. 1048 (1978) ......... 14

United States v. McGhee, 488 F.2d 781 (5th Cir.

1974), cert. denied sub nom. Bunner v. United

mbes, 417: U8. O40 CASTES acetic nis 13

TABLE OF AUTHORITIES

Cases: Page

United States v. Moore, 505 F.2d 426 (D.C. Cir.

1074), rev'd, 423 U.S. 122 (1978) .....4%. 9,13

United States v. Outler, 659 F.2d 1306 (5th

Cir. 1981), cert. denied, 455 U.S. 950

DIRE 2 se asp muta tcp 6 austere ats eatkas eke 9, 10

United States v. Piggie, 622 F.2d 486 (10th Cir.)

cert. denied, 449 U.S. 863 (1980) .......... 17

United States v. Rogers, 609 F.2d 834 (5th Cir.

ME i ais x ark P wtin's a oeabere ee Races Oe ae 10

United States v. Seelig, 622 F.2d 207 (6th Cir.

1980), cert. denied, 449 U.S. 869 (1981) .... 10

United States v. Wander, 60! F.2d 1251 (3d Cir.

tS a ha So Se caves ob fo a oe RCO, a 12, 13

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution, Amendment V & oe 2

United States Constitution, Amendment VI .... 2, 18

Re NOM oe eres ee ee ee ee 2

SS ME ns sd a ns a aha ewe eee ey wo te 2,.& 33

ye kk | a epee ea CERN, manner 14

Seek go caus Ka ae ee 3, 6, 14

ns TED. 65's owns cash wee apap ieee 3, 9, 10

ee Bera SPORE UR) yon cate eewaes 3, 5, 8, 9, 13

fg * Soke 1} ) in rere ann, aun a Abra 5

SS EOE. 5.5.5 6'ne'n ¥ v.0it-e 5 Le Rae we 5

EN <u. ss. 'é. u's. 0's pin 'w ss ne Re 14

SE SPEED... c's a a0 wach a ba bowed yee ae 2

RR CN Nig sno ds «eee Re 4,5,8

iv

TABLE OF AUTHORITIES

Cases: Page

REGULATIONS

ee Get. SERGORRE-2SUGLIS 2... cee eens 14,15

fk ep ah Be (PG RT@ | > inane ee 15

Meee BOSON UMEDN(S) . .... coc eens a ven 16

EE BE nas Gk Sw kav Woe eee be kee 14

RULES

YE OS) 8 > 4, 15, 16

ee eae) Ca Ween. Crm.P. . ww... ic ce cee 13

Ek eS ee 18

MISCELLANEOUS

H.Rep. No. 93-650, 93d Cong., Ist Sess. (1973),

reprinted in U.S. Code Cong. and Admin.

SE MUUUDUUNOUED uv vv oiccs ev vou eieceuds 16

Physician’s Desk Reference (36th ed. 1982) 14, 15, 16

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

HRATCH K. SARIAN,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, Hratch K. Sarian, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Third Circuit, entered in this proceeding on August 5,

1983. nm

OPINIONS BELOW

The unpublished per curiam opinion of the United

States Court of Appeals for the Third Circuit affirming

petitioner's conviction was filed on August 5, 1983 and

appears in the Appendix at Al. The United States Dis-

trict Court for the Eastern District of Pennsylvania is-

sued no opinions in connection with this case.

2

JURISDICTION

the judgment of the United States Court of Appeals

for the Third Circuit, entered on August 5, 1983, ap-

pears in the Appendix at A6. On September 7, 1983, the

Third Circuit denied petitioner's timely petition for

rehearing and rehearing en banc (A7), and this petition

for certiorari was filed within 60 days of that date. This

Court's juridiction is invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment V

No person shall be held to answer for a capital, or

other infamous crime, unless on a presentment or in-

dictment of a Grand Jury... .

United States Constitution, Amendment VI

In all criminal prosecutions, the accused shall enjoy

the right toa. . . trial, by an impartial jury... .

Controlled Substances Act, 21 U.S.C. §801 et seq.

21 U.S.C. §802. Definitions — As used in this

subchapter:

(6) The term “controlled substance” means a drug

or other substance, or immediate precursor, included in

schedule I, II, III, IV, or V of part B of this subchapter

e - o o

(10) The term “dispense” means to deliver a con-

trolled substance to an ultimate user or research subject

by, or pursuant to the lawful order of, a practitioner, in-

cluding the prescribing and administering of a con-

trolled substance and the packaging, labeling, or com-

pounding necessary to prepare the substance for such

3

delivery. The term “dispenser” means a practitioner who

so delivers a controlled substance to an ultimate user or

research subject.

(11) The term “distribute” means to deliver (other

than by administering or dispensing) a controlled sub-

stance. The term “distributor” means a person who so

delivers a controlled substance.

(20) The term “practitioner” means a physician,

dentist, veterinarian, scientific investigator, pharmacy,

hospital, or other person licensed, registered, or other-

wise permitted, by the United States or the jurisdiction

in which he practices. . ., to distribute, dispense, . .

lor] administer. . . a controlled substance in the course

of professional practice... .

21 U.S.C. §812. Schedules of controlled substances.

Establishment. (a) There are established five sched-

ules of controlled substances, to be known as schedules

I, II, 111, IV, and V. Such schedules shall initially consist

of the substances listed in this section. The schedules

established by this section shall be updated and repub-

lished... .

21 U.S.C. §822(b). Authorized activities.

Persons registered by the Attorney General under

this subchapter to manufacture, distribute, or dispense

controlled substances are authorized to possess, manu-

facture, distribute, or dispense such substances. . . to

the extent authorized by their registration and in con-

formity with the other provisions of this subchapter.

21 U.S.C. §841. Prohibited acts.

Unlawful acts. (a) Except as authorized by this

subchapter, it shall be unlawful for any person know-

ingly or intentionally —

(1) to manufacture, distribute, or dispense, or pos-

sess with intent to manufacture, distribute or dispense, a

controlled substance; ... .

4

21 U.S.C. §846. Attempt and conspiracy.

Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable by

imprisonment 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.

Rule 201(g), Federal Rules e° Evidence

Instructing jury. In a civil action or proceeding, the

court shall instruct the jury to accept as conclusive any

fact judicially noticed. In a criminal case, the court shall

instruct the jury that it may, but is not required to, ac-

cept as conclusive any fact judicially noticed.

o

STATEMENT OF THE CASE

Petitioner Hratch (“Harold”) K. Sarian and his

co-defendants, Paul F. Gaynor and Samuel I. Guttler, all

registered pharmacists, were indicted for conspiring to

distribute controlled substances, in violation of 2]

U.S.C. §846, and for distributing controlled substances,

in violation of 21 U.S.C. §841(a)(1). Mr. Sarian was also

charged with failing to make, keep or furnish required

records and omitting material information from such

records. 21 U.S.C. §§842(a)(5), 843(a)(4).* The charges

all arose out of the operation of a pharmacy which peti-

tioner Sarian owned and where Gaynor and Guttler

worked.

On August 19, 1979, Mr. Sarian had acquired what

had been Gene’s Pharmacy at 4745 North 11th Street in

Philadelphia, Pennsylvania, and renamed it Harold's

Prescription Pharmacy. After having worked for over

twenty years — often for sixty to eighty hours a week —

for others, Mr. Sarian bought his own drug store so that

he would have more time to spend with his family and

friends. Accordingly, he decided to limit his job to ad-

ministrative tasks which could be carried out from his

home or performed quickly in the pharmacy and hired

Gaynor and Guttler, two experienced registered pharma-

cists, to run the store itself. Mr. Sarian came to the phar-

macy for approximately an hour before closing time each

day and worked as a pharmacist filling prescriptions only

on the rare occasions when neither Gaynor nor Guttler

could be there.

On September 10, 1980, Roger P. Lawyer and Ja-

nice Barnes, two investigators from the Drug Enforce-

ment Administration (“DEA”), appeared at Harold’s Pre-

scription Pharmacy to perform what Lawyer termed “a

routine investigation of pharmacy records and controlled

substances.” At trial, Lawyer testified that the investiga-

tion, which was conducted under the authority of an ad-

2. The indictment is printed in the Appendix at A10.

6

ministrative warrant, showed that the pharmacy had or-

dered and received greater quantities of seven selected

drugs than could be accounted for by prescriptions in

the pharmacy’s files. On the other hand, there were

more prescriptions in the files for an eighth drug,

Percodan, than records showed had been received.

The government's case also consisted of testimony

from five physicians who testified that some of the pre-

scriptions found in the pharmacy’s files which were

written in their names had been forged.* Additionally,

three pharmacists who had worked at the drug store as

interns while attending pharmacy school testified. One

stated that she had often witnessed the filling by Gaynor

of prescriptions which she did not feel were legitimate,

but had never seen Mr. Sarian do anything wrong. The

other two former interns claimed to have seen individu-

als leaving the store with the Schedule V drug

Bromanyl? after meeting with Mr. Sarian, and one said

that she thought that Mr. Sarian had filled questionable

prescriptions for either Bromany! or Talwin on an occa-

sion or two after the time period covered by the indict-

ment. Like the first former intern, the other two said that

it was Gaynor who had filled ail but a scant few of the

prescriptions which they viewed as illegitimate. Addi-

tionally, two of the interns testified that when they chal-

lenged Gaynor for placing their initials on questionable

3. The government submitted handwriting exemplars from

Mr. Sarian to an expert, who was unable to identify any of the writ-

ing on the prescriptions as Mr. Sarian’s.

4. The schedules of controlled substances are based upon

abuse potential, with Schedule II drugs being more highly abused

than Schedule III substances, Schedule III reflecting more abuse

than Schedule IV, and Schedule IV drugs exceeding in abuse those

in Schedule V. See 21 U.S.C. §812. The record shows that Gaynor

and Guttler, the working pharmacists, were responsible for ordering

Schedule III, IV and V drugs, while Mr. Sarian ordered”those in

Schedule II when the stock in the pharmacy's safe seemed de-

pleted.

‘

prescriptions, which indicated that they had filled them,

Gaynor had removed their initials and replaced them

with Mr. Sarian’s.

Bernard Parker, an admitted drug addict who was

awaiting sentencing, testified that all three defendants

filled forged prescriptions for cough medicines for him,

and later provided him with larger quantities of the

drugs. When the petitioner presented his case, however,

two of the store’s cashiers testified that they had seen

Parker loitering in the store, but that Mr. Sarian would

have nothing to do with him and, indeed, had chased

him out of the pharrnacy on at least one occasion.

In uncontradicted testimony, Mr. Sarian stated that

since he was only in the store for short periods, it was the

responsibility of Gaynor and Guttler to order the Sched-

ule III, IV and V substances, fill prescriptions, and,

along with the interns, see to it that those prescriptions

were properly filed. Mr. Sarian said that he did not ex-

amine the filed prescriptions for form or to see whether

they appeared legitimate; that was the job of the two ex-

perienced pharmacists whom he had hired to operate

the business on a day-to-day basis. Mr. Sarian firmly de-

nied that any drugs had gone out of the store without le-

gitimate prescriptions while he was there, that he had

ever illegally sold Bromany! or any other drug to Bernard

Parker or to anyone else, or that he had received money

for illegal drugs. He also testified that the initials “H.S.”

on forged prescriptions had not been placed there by

him \

On June 24, 1982, the jury returned a verdict ot

guilty on all counts against petitioner and his two

co-defendants. Notice of appeal was timely filed by peti-

tioner following the imposition on August 30, 1982, of an

aggregate sentence of ten years of imprisonment, five

years of special parole, five years of probation consecu-

8

tive to incarceration, and a $25,000 fine.? On August 5,

1983, in an unpublished per curiam opinion, the Third

Circuit affirmed the convictions and, on September 7,

1983, denied Mr. Sarian’s petition for rehearing and

rehearing en banc. The Third Circuit has stayed issu-

ance of its mandate pending disposition of the instant

petition for a writ of certiorari.

REASONS FOR GRANTING THE WRIT

I. The Decision Below Conflicts with Those of Other Cir-

cuits that an Indictment which Charges a Person Au-

thorized to Distribute Controlled Substances with a

Violation of 21 U.S.C. §841(a)(1) Must Allege that the

Distribution Was Not For Legitimate Medical Reasons.

Count One of the indictment charged petitioner

with conspiring to distribute controlled substances, in

violation of 21 U.S.C. §846, while Counts Two through

Six accused him of the actual distribution of such sub-

stances, in violation of 21 U.S.C. §841(a)(1). Neither the

counts which accused petitioner of distribution nor the

5. The trial court's sentence was as follows: Ten years of incar-

ceration plus three years of special parole on Count Two (distribu-

tion of Dilaudid and Percodan, Schedule II narcotic controlled sub-

stances); five years plus three years of special parole on Count

Three (distribution of Preludin, Ritalin and Quaalude, Schedule II

non-narcotic controlled substances); five years plus three years of

special parole on Count Four (distribution of Tussionex suspension,

a Schedule III narcotic controlled substance); three years plus five

years of special parole on Count Five (distribution of Talwin, a

Schedule IV non-narcotic controlled substance); one year on Count

Six (distribution of Bromanyl, a Schedule V narcotic controlled sub-

stance); four years on both Counts Seven (placing false and fraudu-

lent prescriptions in the pharmacy files) and Eight (failing to retain

copies of invoices); and one year on Count Nine (failing to record on

required forms the date and quantity received of purchases of

Schedule II substances). All these sentences were to be served con-

currently. Additionally, the court sentenced petitioner to a fine of

$25,000 plus five years of probation consecutive to incarceration on

Count One (conspiring to distribute controlled substances).

9

charging language of the conspiracy count alleged that

petitioner's actions were taken outside the bounds of le-

gitimate professional practice.

21 U.S.C. §841(a)(1) does not proscribe all distribu-

tions of controlled substances, but only those which-are

not authorized, for the statute provides, in pertinent

part: “Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentionally

. , to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute or dispense, a

controlled substance . . .” Licensed pharmacists, such

as Mr. Savian, are among those who may register with

the Attorney General, pursuant to Section 822(b), to

dispense controlled substances, thereby permitting

them to dispense and distribute such drugs. 21 U.S.C.

§ §802(20), 822(b); see United States v. Outler, 659 F.2d

1306, 1309 (5th Cir. 1981), cert. denied, 455 U.S. 950

(1982).

The statute on its face thus appears to allow a physi-

cian or pharmacist who is registered with the Attorney

General to distribute drugs freely and for whatever rea-

son. Indeed, the District of Columbia Circuit so held in

United States v. Moore, 505 F.2d 426 (D.C. Cir. 1974),

rev'd, 423 U.S. 122 (1975); see also United States v.

Outler, supra, 659 F.2d at 1309. This Court reversed the

D.C. Circuit, however, and held that the Controlled Sub-

stances Act implicitly requires that the distribution be

within the bounds of legitimate professional practice.

United States v. Moore, supra, 423 U.S. at 141 (1975).

Nevertheless, because the statute presumptively

permits the millions of registered practitioners in this

country to distribute controlled substances, the First,

Fifth, Ninth and Tenth Circuits have held that when an

authorized distributor of controlled substances is

charged with a a violation of Section 841(a)(1), the gov-

ernment must prove beyond a reasonable doubt that the

distribution was not for legitimate medical reasons.

United States v. Guerrero, 650 F.2d 728, 730 (Sth Cir.

10

1981); United States v. Rogers, 609 F.2d 834 (5th Cir.

1980); United States v. Black, 512 F.2d 864 (9th Cir.

1975); United States v. Bartee, 479 F.2d 484 (10th Cir,

1973); see generally United States v. Moore, supra.

When a registered practitioner is charged with distribut-

ing drugs in violation of the Controlled Substances Act,

the offense is therefore as follows:

{Distribution of controlled substances not author-

ized by §822(b) because either (1) the physician

issuing the prescription was not registered, or (2)

the prescription was not “issued for a legitimate

medical purpose by an individual practitioner acting

in the usual course of his professional practice.”

United States v. Black, supra, 512 F.2d at 868.

The Fifth and Ninth Circuits have also held that the

necessity of proving that distribution occurred for rea-

sons other than legitimate medical ones requires that

the absence of a professional reason for the distribution

be alleged in the indictment where the defendant is one,

such as petitioner here, who is otherwise authorized to

dispense controlled substances. United States v. Outler,

supra, 659 F.2d at 1309; United States v. King, 587 F.2d

956, 962-64 (9th Cir. 1978). Contra, United States v.

Seelig, 622 F.2d 207 (6th Cir. 1980), cert. denied, 449

U.S. 869 (1981). The reason for this requirement was

succinctly stated by the Fifth Circuit in Outler, supra:

We recognize that an element is not always an “es-

sential element” simply because the prosecution

carries the burden of proof; however, here, the ele-

ment embodies the culpability of the offense. With-

out behavior beyond professional practice, there is

no crime. We believe, therefore, that the lack of a le-

gitimate medical reason is as essential to the of-

fense charged against Dr. Outlar [sic] as the requi-

site mens rea.

Id., 659 F.2d at 1309 (emphasis added).

1]

In this case, the Third Circuit refused to decide ex-

plicitly whether it was essential for the indictment to al-

lege that the drug distribution with which Mr. Sarian

was charged occurred outside of the legitimate bounds

of his professional practice. Instead, because trial coun-

sel had not objected to the indictment at trial, the Court

of Appeals stated that it would assume arguendo that the

allegation which was missing from the indictment

should have been included in it but would reverse only if

petitioner were thereby substantially prejudiced. See

Opinion of the Court at 3-4, printed at A3.

The Circuit Court then found that both of an indict-

ment’s functions — “protectiing| the defendant's sixth

amendment right to be informed of the charges against

him and... uphold|ing} the fifth amendment guarantee

that prevents prosecution for infamous crimes without

an indictment by a grand jury”, Opinion of the Court at

4, printed at A4, citing Russell v. United States, 369

U.S. 749, 763-64 (1962) — were satisfied in Mr. Sarian’s

case.° The Court of Appeals adverted to an overt act al-

leged in the conspiracy count which stated that the de-

fendants had placed orders for and received drugs in or-

der to sell them outside the ordinary course of the

pharmacy’s business. This allegation, the court held,

met petitioner's contention that the indictment did not

sufficiently show that the grand jury had found probable

cause that the distribution alleged in each count had oc-

curred for other than legitimate professional reasons.

The court found “it reasonable to infer [from the alleged

overt act] that the grand jury had before it evidence of

defendant's excesses and indicted him for his activity

outside legally permissible limits as a pharmacist.” Opin-

ion of the Court at 5, printed at A4.

This cross-fertilization between the recitation of an

overt act in the conspiracy count and the charging lan-

6. Petitioner had never argued that the indictment had tres-

passed upon his rights to notice nor upon his right to be protected

against double jeopardy

12

guage of both that count and the substantive counts

conflicts not only with the holding of this Court in Joplin

Mercantile Co. v. United States, 236 U.S. 531, 535-36

(1915), but also with the Third Circuit's own opinion in

United States v. Wander, 601 F.2d 1251 (3d Cir. 1979),

where it held that:

lajlthough the overt acts section in the indictment

appears to include [a] missing element, this does

not cure the insufficiency. “|U|nless the charging

part of a conspiracy count specifically refers to or in-

corporates by reference allegations which appear

under the heading of overt acts, resort to those alle-

gations may not be had to supply the insufficiency

in the charging language itself.”

Id., at 1259, quoting United States v. Knox Coal Co., 347

F.2d 33, 38 (3d Cir.), cert. denied sub nom. Lippi v.

United States, 382 U.S. 904 (1965) (emphasis added). A

fortiori, if an overt act cannot be used to supply a missing

element in the charging language of the conspiracy

count, it cannot be exported to save an otherwise defi-

cient substantive count.

Furthermore, the Court of Appeals’ leap from the

likelihood that the grand jury heard evidence that the

distribution was not for legitimate professional reasons,

an inference which it drew from the presence in the in-

dictment of the allegation of the overt act, to the conclu-

sion that the grand jury had found probable cause as to

that element of the offense overlooks Russell v. United

States, supra, where this Court stated:

To allow the prosecutor, or the court, to make a sub-

sequent guess as to what was in the minds of the

grand jury at the time they returned the indictment

would deprive the defendant of a basic protection

which the guaranty of the intervention of a grand

jury was designed to secure.

369 U.S. at 770; see also United States v. Beard, 414

F.2d 1014, 1016 (3d Cir. 1969).

13

The grounds advanced by the Court of Appeals to

cure the defect in the indictment are therefore

unpersuasive. Moreover, the failure of an indictment to

charge an offense is a fundamental defect which can be

raised at any time. United States v. Wander, supra, 601

F.2d at 1259; United States v. McGhee, 488 F.2d 781,

783 n.2 (Sth Cir. 1974), cert. denied sub nom, Bunner v.

United States, 417 U.S. 949 (1974); Rule 12(b)(2),

Fed.R.Crim.P. The Third Circuit's affirmance of peti-

tioner’s convictions on Counts One through Six of the

indictment can therefore only be explained as a rejection

of the principle enunciated by the Fifth and Ninth Cir-

cuits that an allegation of distribution outside of legiti-

mate professional practice is necessary to charge a

violation of 21 U.S.C. §841(a) against a pharmacist or a

physician.

Given the frequency with which health profes-

sionals are indicted under the Controlled Substances

Act, petitioner therefore submits that this case raises an

important question of federal law as to which there is

conflict among the circuits, and that this conflict, to

which Moore did not speak, should now be resolved by

this Court.

II. The Decision Below Conflicts with That of the Sixth

Circuit in Jones v. United States, For It Sanctioned an

Instruction which Charged the Jury to Take as a Mat-

ter of Law Facts which the Jury Should Have Been

Free to Ignore.

The Controlled Substances Act makes illegal the

distribution of a “controlled substance”, 21 U.S.C.

§841(a)(1). a term which is defined as “a drug or other

substance, or immediate precursor, included in sched-

ule I, Il, Il, IV. or V. . . .” 21 U.S.C. §802(6). The

drugs which are included in each schedule are listed in

14

21 U.S.C. §812(c) and in 21 C.F.R. §§1308.11-1308.157

not by their brand names but rather by their chemical

names or by the amount of proscribed substances (such

as codeine) which they contain.

With only two exceptions, the indictment here did

not identify the drugs which petitioner was accused of

distributing by their chemical names, as contained in

the statute and regulations, but used their brand names

instead®. See Indictment, printed at A8-13. Cf. United

States v. Hinkle, 637 F.2d 1154, 1156 n.1 (7th Cir.

1981); United States v. Goodman, 605 F.2d 870, 883

n.16 (5th Cir. 1979); United States v. Kirk, 584 F.2d

773, 775 (6th Cir. 1978), cert. denied, 439 U.S. 1048

(1978). One will search at length and in vain to find

those brand names in the schedules contained in 21

U.S.C. §812(c) and 21 C.F.R. §§1308.11-1308.15.

Moreover, aside from the conclusory testimony of

DEA Agent Lawyer, who said that the brand name drugs

listed in the indictment fell into the various schedules

but did not once mention the chemical names of those

drugs, and the testimony of one physician that Bromanyl

contains codeine and of another that Tussionex also con-

tains codeine,” the government did not even attempt to

forge an evidentiary link between the brand names in

the indictment and the chemical names in the statute

and regulations. This was so even though nothing could

be more essential to the presentation of a prima facie

7. 21 U.S.C. §811 grants to the Attorney General the authority

to add or remove ctrugs from the initial schedule which is contained

in Section 812. Tne schedules in the Code of Federal Regulations

are promulgatec pursuant to this authority. See also 21 U.S.C.

§§812, 871(b).

8 The two exceptions were the identification of Quaalude tab-

lets as methaq' alone in Counts One and Three and Tussionex sus-

pension as hydrocodone in Counts One and Four.

9 The latter is incorrect. Tussionex contains hydrocodone.

Physician's Desk Reference 1481 (36th ed. 1982). Substances con-

taining codeine u** Schedule V substances, not Schedule III, as

Tussionex was alleged to be. See 21 C.F.R. §1308.15.

15

case against an individual who is charged with conspir-

ing to distribute or with distributing controlled sub-

stances than proof that the drugs involved are among

those proscribed by the statute or regulations. See

United States v. Hall, 552 F.2d 273, 274 (9th Cir. 1977).

As a result, the government's evidence was clearly

insufficient to sustain a conviction. Far more important,

however, was the violation of Rule 201(g), Fed.R.Ev.,

and of the petitioner's right to a trial by jury which re-

sulted from the trial judge's attempt, through his

instructions to the jury, to cure the deficiency in the evi-

dence. The jury was instructed as follows:

Count 2 charges defendants with the distribution of

the Dilaudid and Percodan tablets which are Sched-

ule II narcotic controlled substances.

Count 3 charges defendants with distribution of

Preludin, Ritalin and Quaalude tablets which are

Schedule II non-narcotic substances.

Count 4 charges defendants with distribution of

Tussionex suspension, a Schedule III narcotic con-

trolled substance.

Count 5 charges defendants with distribution of

Talwin tablets, a Schedule IV nonnarcotic sub-

stance.

Count 6 charges defendants with distribution of

Bromany! expectorant, a Schedule V narcotic con-

trolled substance.

You are instructed as a matter of law that these are

controlled substances.

R., Vol. IV, at 929-30 (emphasis added).

Despite the court’s instructions, Dilaudid, for

example, is not a Schedule II controlled substance as a

matter of law; hydromorphone is. See 21 C.F.R.

§1308.12(b)(1)(11); see also Physician’s Desk Reference

1008 (36th ed. 1982). {hereinafter cited as PDR)

16

Similarly, Preludin is not a controlled substance as a

matter of law; phenmetrazine is. See 21 C.F.R.

§1308.12(d)(3); see also PDR, supra, at 680. Whether or

not Dilaudid contains hydromorphone or Preludin con-

tains phenmetrazine is a question of fact which the gov-

ernment must prove, either through testimony or the

taking of judicial notice.

Rule 201(g), Fed.R.Ev., provides:

Instructing jury. In a civil action or proceeding, the

court shall instruct the jury to accept as conclusive

any fact judicially noticed. In a criminal case, the

court shall instruct the jury that it may, bui is not

required to, accept as conclusive any fact judicially

noticed. (Emphasis added. )

In its report concerning the Federal Rules of Evi-

dence, the House Judiciary Committee explained the

difference between the manner in which a jury is to be

instructed in a civil and criminal case with regard to ju-

dicially noticed facts:

Rule 201(g) as received from the Supreme Court

provided that when judicial notice of a fact is taken,

the court shall instruct the jury to accept that fact as

established. Being of the view that mandatory in-

struction to a jury in a criminal case to accept as

conclusive any fact judicially noticed is inappropri-

ate because contrary to the spirit of the Sixth

Amendment right to a jury trial, the Committee

adopted the 1969 Advisory Committee draft of this

subsection, allowing a mandatory instruction in

civil actions and proceedings and a discretionary in-

struction in criminal cases.

H. Rep. No. 93-650, 93d Cong., Ist Sess. 6-7 (1973), re-

printed in U.S. Code Cong. and Admin. News 7075,

7080 (1978)(emphasis added).

Thus, in United States v. Jones, 580 F.2d 219 (6th

Cir. 1978), the government failed to prove that South

Central Bell Telephone was a common carrier which

17

provided facilities for interstate or foreign communica-

tions, an element of the wiretapping offense with which

the defendant was charged. In affirming the post-trial

entry of a judgment of acquittal, the Sixth Circuit first

found that the telephone company’s status as a carrier of

interstate or foreign communciations was not within the

common knowledge of the jury, which would have made

proof of that fact unnecessary. Id., at 222. The court

then went on to hold that judicial notice of the status of

South Central Bell could not be taken on appeal because

Rule 201(g), with its constitutional underpinning, re-

quires the jury in a criminal case to pass even upon facts

which are judicially noticed. Id. at 224.

In petitioner's case, even if the trial court had taken

judicial notice from PDR of the chemical names of the

drugs at issue (which it did not), it would still have been

required to instruct the jury that it could ignore such a

finding. Perforce, the failure even to take judicial notice

of the chemical identity of the drugs did not permit the

trial judge to instruct the jury that the brand name

drugs which the government was required to prove were

among those proscribed by the statute and regulations

were, as a matter of law, controlled substances. '°

The effect of the Third Circuit's affirmance of peti-

tioner’s conviction in the face of this instruction was “to

permit a partial directed verdict as to facts in a criminal

case.” United States v. Jones, supra, 580 F.2d at 224

10. United States v. Anderson, 528 F.2d 590 (5th Cir.), cert.

denied, 429 U.S. 837 (1976), and United States v. Piggie, 662 F.2d

486 (10th Cir. ), cert. denied, 449 U.S. 863 (1980), each involved the

taking of judicial notice thai a federal penal institution was within

the special territorial jurisdiction of the United States. In each, the

jury was not specifically advised, as required by Rule 201(g),

Fed.P.Ev., that it need not accept the fact judicially noticed. The

convictions were affirmed, however, because the trial judges had

told the juries to treat the judicially noticed fact like the other evi-

dence, and the juries were therefore aware that they were free to

accept or reject those facts. Here, of course, the jury was instructed

that it was bound as a matter of law by the trial judge's instructions

that the drugs were controlled substances.

18

(footnote omitted). As the Sixth Circuit stated in Jones,

supra:

“If a court can take one important element of an of-

fense from the jury and determine the facts for

them because such facts seem plain enough to him,

then which element cannot be similarly taken away

and where would the process stop?”

Id., 580 F.2d at 224 n.8, quoting State v. Lawrence, 120

Utah 323, 234 P.2d 600, 603 (1951).

While the trial Court's directing of a partial verdict

was not challenged at trial, it should have been noticed

by the Third Circuit and can be noticed by this Court he-

cause the error affected petitioner's substantial right to a

trial by jury.'' Rule 52(b), Fed.R.Crim.P.; see

Bollenbach v. United States, 326 U.S. 607, 614 (1945);

United States v. Hayward, 420 F.2d 142, 144-46 (D.C.

Cir. 1969); Bryan v. United States, 373 F.2d 403 (5th

Cir. 1967). The effect of the Court of Appeals’ affirm-

ance of petitioner's conviction was to sanction and par-

ticipate in violations of Rule 201(g) and of the Sixth

Amendment right to a trial by jury, upon which Rule

201(g) rests, thereby bringing the Third Circuit into

conflict with the Sixth Circuit's opinion in Jones, supra.

This conflict justifies the grant of a writ of certiorari

to review the judgment below.

11. In United States v. Jones, supra, the error was not raised at

trial but only in a post-verdict motion for a new trial. Id., 580 F.2d at

221.

19

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Third Circuit.

Richard A. Sprague

William R. Herman

Suite 400, Wellington Bldg.

35 South 19th Street

Philadeiphia, Pa. 19103

(215) 561-7681

Counsel for Petitioner,

Hratch K. Sarian

Of Counsel:

SPRAGUE & RUBENSTONE

Suite 400, Wellington Bldg.

135 South 19th Street

Philadelphia, Pa. 19103

(215) 561-7681

Dated: November 4, 1983

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1542

UNITED STATES CF AMERICA,

Appellee

Uv.

HRATCH K. SARIAN, t/a

HAROLD'S PRESCRIPTION PHARMACY,

Appellant

(On Appeal From the United States District Court

for the Eastern District of Pennsylvania)

(Criminal No. 82-0065 — E. D. of Pa.)

Argued June 10, 1983

(Filed August 5, 1983)

Before Seitz, Chief Judge, Sloviter, Circuit Judge and

Brotman, District Judge."

Richard A. Sprague, Esquire

Edward H. Rubenstone, Esq.

William R. Herman, Esq. (argued)

Sprague & Rubenstone

Suite 400, Wellington Bldg.

135 South 19th St.

Philadelphia, Pa. 19103

Attorneys for Appellant

* Hon. Stanley S. Brotman, United States District Judge

for the District of New Jersey, sitting by designation.

A-1

A-2

Peter F. Vaira, Esq.

United States Attorney

Walter S. Batty, Jr.

Assistant U. S. Attorney

Chief of Appeals

Samuel M. Forstein, Esq. (argued)

Assistant U. S. Attorney

Rm. 3310, U. S. Courthouse

Philadelphia, Pa. 19106

Attorneys for Appellees

OPINION OF THE COURT

PER CURIAM.

Defendant appeals his sentences after conviction by

a jury arising out of his ownership and operation of a

pharmacy. He asserts numerous errors by the district

court but we consider only the attack on the legal suffi-

ciency of the first six counts of the indictment. '

1. The other alleged errors which we find without merit are as

follows:

The Government never proved that the drugs which appel-

lant allegedly distributed are proscribed by the Controlled Sub-

stances Act.

The Trial Court should have acquitted appellant on counts

seven and eight because there was no evidence of Mr. Sarian's

involvement in the alleged record keeping violations.

There was no evidence that appellant illegally distributed

quaalude tablets |sic| or percodan and no competent evidence

that he had failed to complete the DEA 222 Form as required.

The trial court's instructions affected appellant's substan-

tial rights to a trial by jury and to a unanimous verdict.

By instructing the jury that the drugs named in the indict-

ment were controlled substances as a matter of law, the trial

court directed a partial verdict against appellant.

The trial court's instructions deprived appellarst of his con-

stituuional right to a unanimous jury verdict on Counts two and

three

The maximum permissible fine which the court below

could have impes d upen appellant's conviction of conspiring

to distribute controlled substances was $5,000

A-3

In count one, the defendant was charged, inter alia,

with knowingly, intentionally and unlawfully conspiring

with others to distribute certain identified drugs in viola-

tion of 21 U.S.C. §841(a)(1). One of the overt acts

charged to defendant was placing orders with and re-

ceiving from drug violators quantities of controlled sub-

stances to sell outside the ordinary course of business of

his pharmacy. In counts two through six, it was alleged

that defendant knowingly, intentionally and unlawfully

distributed and caused to be distributed certain identi-

fied highly abused narcotic controlled substances in vio-

lation of 18 U.S.C. §841(a) (1) and 18 U.S.C. §2. There

are no allegations with respect to the distributions being

outside the ordinary course of defendant's business as a

pharmacist.

In this appeal, defendant challenges the sufficiency

of his indictment with regard to counts one through six,

contending that the indictment failed to charge all nec-

essary elements of the crimes alleged. Specifically, de-

fendant says the indictment should have alleged that de-

fendant, registered with the DEA as a pharmacist, acted

outside the usual course of his professional practice

when committing the acts alleged. See United States v.

Moore, 423 U.S. 122 (1975).

Because defendant did not raise this objection at

trial, our standard of review is for plain error. United

States v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983).

Under this rigorous standard, we may reverse only if the

trial court committed error which amounts to a manifest

miscarriage of justice. United States v. Schreiber, 599

F.2d 534, 535 (3d Cir.), cert. denied, 444 U.S. 950

(1979). Therefore, it will be necessary to reach the mer-

its of defendant's contentions only if, assuming

arguendo that the indictment should have alleged that

defendant distributed controlled substances outside the

ordinary course of his pharmacy business, the failure of

the indictment to do so redounded to defendant's sub-

stantial prejudice.

A-4

An indictment serves two functions. It protects the

defendant's sixth amendment right to be informed of the

charges against him and it upholds the fifth amendment

guarantee that prevents prosecution for infamous

crime 3; without an indictment by a grand jury. Russell v.

United States, 369 U.S. 749 (1962).

The various counts of the indictment identify the

statutes allegedly violated. They identify the particular

drugs distributed and the appropriate amount allegedly

distributed, and they allege that such distributions were

illegal. Furthermore, the conspiracy count specifically

alleges an overt act was placing orders with and receiv-

ing from drug violators quantities of controlled sub-

stances to sell outside the ordinary course of business of

his pharmacy.” In addition, the government's proof

clearly entitled the jury to conclude that defendant was

distributing such drugs outside the ordinary course of

his pharmacy business.

The fifth amendment requires an indictment by a

grand jury for infamous crimes. One of the overt acts

charged in the conspiracy count against the defendant

alleges that he conspired to sell outside the ordinary

course of his pharmacy business. We think it reasonable

to infer from this allegation that the grand jury had be-

fore it evidence of defendant's excesses and indicted him

for his activity outside legally permissible limits as a

pharmacist. At least, we cannot say that the indictment

is so lacking in this assurance that we should consider

the assumed deficiency as a manifest miscarriage of jus-

tice.

Similarly, given its allegations, we are unwilling to

say that defendant's indictment is so lacking in informa-

2. We realize that a distinction is often drawn between the

charging portion of a conspiracy count and the overt acts, but we

think it is not impermissible to consider the evert act under the cir-

cumstances of this case despite any contradictory implication which

may flow from United States v. Wander, 601 F.2d 1251 (3d Cir.

1979).

_

A-5

tion concerning the charges against him that a failure to

take cognizance of defendant's contention for the first

time on appeal would substanually prejudice the defend-

ant with regard to his sixth amendment rights. We so

conclude because of the overt act alleged and the other

particulars set forth in the counts in question.

Finally, we note that the substantiality of the gov-

ernment’s proof as to the defendant's distribution out-

side the course of his professional practice tends to ame-

liorate any residual prejudice that defendant might have

experienced due to the omission of the alleged element.

Therefore, based on all of the foregoing factors, we hold

that defendant's challenge to the sufficiency of his in-

dictment, raised for the first time on appeal, must be de-

nied.

The judgment of the district court will be affirmed.

To the Clerk of the Court:

Please file the foregoing opinion.

Judge

A-6

United States Court of Appeals

FOR THE THIRD CIRCUIT

No. 82-1542

UNITED STATES OF AMERICA

U,

SARIAN, HRATCH K., t/a Harold's

Prescription Pharmacy

Hratch K. Sarian, Appellant

(D.C. Crim, No. 82-00065-01 )

On Appeal From the United States District Court for the

Eastern District of Pennsylvania

Present: SEITZ, Chief Judge, SLOVITER, Circuit Judge

and

BROTMAN, District Judge’

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Eastern District

of Pennsylvania and was argued by counsel June 10,

1983.

On consideration. whereof, it is now here ordered

and adjudged by this Court that the judgment of the said

District Court entered August 31, 1982, be, and the

same is hereby affirmed.

ATTEST:

Sally Mrvos

Clerk

August 5, 1983

* Honorable Stanley S. Brotman, United States District Judge for

the District of New Jersey, sitting by designation.

A-7

United States Court of Appeals

FOR THE THIRD CIRCUIT

No. 82-1542

UNITED STATES OF AMERICA

U.

HRATCH K. SARIAN, t/a

HAROLD'S PRESCRIPTION PHARMACY,

Appellant

(Criminal No. 82-0065 — E.D.Pa.)

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH,

HIGGINBOTHAM, SLOVITER, BECKER,

Circuit Judges, and BROTMAN, District

Judge.”

ihe petition for rehearing filed by appellant in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the deci-

sion having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court en banc, the pe-

tition for rehearing is denied.

By the Court,

Collins J. Seitz

Chief Judge

Dated: September 7, 1983

* Honorable Stanley S. Brotman, United States District Judge for

the District of New Jersey, sitting by designation.

A-8

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF

AMERICA Criminal No, 82-00065

v.

HRATCH K. SARIAN, Wa: Violations: 21 U.S.C.

Harold’s Prescription §846 (Conspiracy —

Pharmacy One Count)

PAUL F. GAYNOR 21 U.S.C: § 841(a)(1)

SAMUEL I. GUTTLER (Distribution of Con-

trolled Substances —

Five Counts)

21 U.S.C. § 843(a)(4)

(Omitting Material In-

formation from Re-

quired Records —

Two Counts)

21 U.S.C. §842(a)(5)

(Failure to Make,

Keep or Furnish Re-

quired Records —

One Count)

INDICTMENT

COUNT ONE

THE GRAND JURY CHARGES THAT:

From on or about August 19, 1979 to on or about

September 10, 1980, in Philadelphia, in the Eastern Dis-

trict of Pennsylvania, and elsewhere,

HRATCH K. SARIAN

t/a Harold’s Prescription Pharmacy,

PAUL F. GAYNOR

and

SAMUEL I. GUTTLER.

knowingly, intentionally and unlawfully did combine,

conspire, confederate and agree together and with each

other and with persons known and unknown to this

A-9

Grand Jury, to distribute the following controlled sub-

stances, in violation of Title 21, United States Code, Sec-

tion 841(a)(1):

Dilaudid tablets, a Schedule II narcotic controlled

substance

Preludin tablets, a Schedule !I1 non-narcotic con-

trolled substance

Percodan tablets, a Schedule II narcotic controlled

substance

Ritalin tablets, a Schedule II non-narcotic con-

trolled substance

Quaalude tablets (Methaqualone), a Schedule II

non-narcotic controlled substance

Tussionex Suspension (Hydrocodone), a Schedule

III narcotic controlled substance

Talwin tablets, a Schedule IV non-narcotic con-

trolled substance

Bromanyl Expectorant (Codeine based syrup), a

Schedule V controlled substance.

In furtherance of this conspiracy, the following per-

sons did do and perform the following overt acts, among

others, within the Eastern District of Pennsylvania:

OVERT ACTS

(1) At various times HRATCH K. SARIAN va

Harold’s Prescription Pharmacy, PAUL F. GAYNOR.

and SAMUEL I. GUTTLER did distribute the highly

abused controlled substances listed above.

(2) At various times HRATCH K. SARIAN va

Harold’s Prescription Pharmacy, PAUL F. GAYNOR,

and SAMUEL I. GUTTLER did cause numerous false

and forged drug prescriptions in the names of several

doctors to be placed in the records of Harold's Prescrip-

tion Pharmacy.

A-10

(3) At various times HRATCH Kk. SARIAN va

Harold’s Prescription Pharmacy and PAUL F. GAYNOR

did place orders with and receive from several drug

wholesalers quantities of controlled substances to sell

outside the ordinary course of business of Harold’s Pre-

scription Pharmacy.

(4) At various times HRATCH Kk. SARIAN Va

Harold's Prescription Pharmacy omitted material infor-

mation from records required to be kept by law.

(S) At various times HRATCH K. SARIAN va

Harold's Prescription Pharmacy failed to make, keep and

furnish certain records required by law.

(6) On the morning of October 17, 1980, HRATCH

K. SARIAN knowingly and willfully attempted to con-

ceal his knowledge concerning the distribution of the

drugs listed above by declaring to federal agents that he

did not know what happened to the drugs.

In violation of Title 21, United States Code, Section

846.

COUNT TWO

THE GRAND JURY FURTHER CHARGES THAT:

From on or about August 19, 1979 to on or about

September 10, 1980, at Philadelphia, in the Eastern Dis-

trict of Pennsylvania,

HRATCH K. SARIAN

t/a Harold’s Prescription Pharmacy,

PAUL F. GAYNOR

and

SAMUEL I. GUTTLER

knowingly and intentionally did unlawfully distribute

and cause to be distributed the following approximate

quantities of highly abused Schedule II narcotic con-

trolled substances: 19,230 Dilaudid 4 mg. tablets and

3,084 Percodan tablets.

In violation of Title 21, United States Code, Section

841(a)(1), and Title 18, United States Code, Section 2.

A-11

COUNT THREE

THE GRAND JURY FURTHER CHARGES THAT:

From on or about August 19, 1979 to on or about

September 10, 1980, at Philadelphia, in the Eastern Dis-

trict of Pennsylvania,

HRATCH K. SARIAN

t/a Harold's Prescription Pharmacy,

PAUL F. GAYNOR

and

SAMUEL I. GUTTLER

knowingly and intentionally did unlawfully distribute

and cause to be distributed the following approximate

quantities of highly abused Schedule II non-narcotic

controlled substances: 16,623 Preludin 75 mg. tablets,

12,503 Ritalin 20 mg. tablets, and 6,100 Quaalude

(Methaqualone) tablets.

In violation of Title 21, United States Code, Section

841(a)(1), and Title 18, United States Code, Section 2.

COUNT FOUR

THE GRAND JURY FURTHER CHARGES THAT:

From on or about August 19, 1979 to on or about

September 10, 1980, at Philadelphia, in the Eastern Dis-

trict of Pennsylvania,

HRATCH K. SARIAN

V/a Harold’s Prescription Pharmacy,

PAUL F. GAYNOR

and

SAMUEL I. GUTTLER

knowingly and intentionally did unlawfully distribute

and cause to be distributed 7351.7 ounces of Tussionex

Suspension (Hydrocodone), a highly abused Schedule

III narcotic controlled substance.

In violation of Title 21, United States Code, Section

841(a)(1), and Title 18, United States Code, Section 2.

A-12

COUNT FIVE

THE GRAND JURY FURTHER CHARGES THAT:

From on or about August 19. 1979 to on or about

September 10, 1980, at Philadelphia, in the Eastern Dis-

trict of Pennsylvania,

HRATCH K. SARIAN

Ua Harold's Prescription Pharmacy,

PAUL F. GAYNOR

and

SAMUEL I. GUTTLER

knowingly and intentionally did unlawfully distribute

and cause to be distributed 261,276 Talwin 50 mg. tab-

lets, a highly abused Schedule IV non-narcotic sub-

stance.

In violation of Title 21, United States Code, Section

841i(a)(1), and Title 18, United States Code, Section 2.

COUNT SIX

THE GRAND JURY FURTHER CHARGES THAT:

From on or about August 19, 1979 to on or about

September 10, 1980, at Philadelphia, in the Eastern Dis-

trict of Pennsylvania,

HRATCH K. SARIAN

t/a Harold’s Prescription Pharmacy,

PAUL F. GAYNOR

and

SAMUEL I. GUTTLER

knowingly and intentionally did unlawfully distribute

and cause to be distributed 1,956 gallons of Bromany]

Expectorant (Codeine based syrup), a highly abused

Schedule V narcotic controlled substance.

In violation of Title 21, United States Code, Section

841(a)(1), and Title 18, United States Code, Section 2.

A-13

COUNT SEVEN

THE GRAND JURY FURTHER CHARGES:

From on or about August 19, 1979, ‘> on or about

September 10, 1980, at Philadelphia, in the Eastern Dis-

trict of Pennsylvania,

HRATCH k. SARIAN

Va Harold's Prescription Pharmacy

knowingly and intentionally did unlawfully place false

and fraudulent prescriptions for Schedule II, III, IV and

V controlled substances in his pharmacy files, which

prescriptions are material information in records which

by law are required to be made, kept and filed by

Harold's Prescription Pharmacy.

In violation of Tithe 21, United States Code, Section

843(a)(4).

COUNT EIGHT

THE GRAND JURY FURTHER CHARGES:

From on or about August 19, 1979, to on or about

September 10, 1980, at Philadelphia, in the Eastern Dis-

trict of Pennsylvania,

HRATCH kK. SARIAN

va Harold's Prescription Pharmacy

knowingly and intentionally omitted material informa-

tion trom records required by law to be made, kept and

filed in that

HRATCH Kk. SARIAN

Va Harold’s Prescription Pharmacy

failed to retain a copy of the invoice from the supplier for

numerous purchases of controlled substances.

In violation of Title 21, United States Code, Section

843(a)(4).

A-14

COUNT NINE

THE GRAND JURY FURTHER CHARGES:

From on or about August 19, 1979 to September 10,

1980, at Philadelphia, in the Eastern District of Pennsyl-

vania,

HRATCH Kk. SARIAN

Va Harold's Prescription Pharmacy

knowingly and intentionally refused and failed to make,

keep and furnish a record required by law to be made,

kept and furnished in that HRATCH K. SARIAN failed

to record the date and quantity of numerous Schedule II

substances received on the purchaser's copy of the Offi-

cial (DEA 222c) Order Forms.

In violation of Title 21, '/nited States Code, Section

842(a)(5).

A TRUE BILL:

Foreman

PETER F. VAIRA

United States Attorney

A-15

DEFENDANT

HRATCH K. SARIAN

108 Gulph Mills Rd., Radnor, Pa. 19087

Eastern District of Penna.

Docket No. 82-00065-01

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the government

the defendant appeared in person on this date August

30, 1982.

COUNSEL

[]) WITHOUT COUNSEL: However the court advised

defendant of right to counsel and asked whether de-

fendant desired to have counsel appointed by the

court and the defendant thereupon waived assis-

tance of counsel.

WITH COUNSEL: Jos. C. Santaguida, Esq., Suite

1306, 1346 Chestnut St., Phila., Pa.

PLEA

(_]) GUILTY, and the court being satisfied that there is a

factual basis for the plea,

-]} NOLO CONTENDERE

[]) NOT GUILTY

FINDING AND JUDGMENT

There being a verdict of:

() NOT GUILTY. Defendant is discharged.

GUILTY.

Defendant has been convicted as charged of the

offense(s) of conspiracy; aiding and abetting; distribution

of controlled substances; omitting material information

A-16

from required records; failure to make, keep or furnish

required records in violation of 21 USC §846;

§841(a)(1); §843(a)(4); §842(a5); 18 USC §2.

SENTENCE OR PROBATION ORDER

SPECIAL CONDITIONS OF PROBATION

ADDITIONAL CONDITIONS OF PROBATION

The court asked whether defendant had anything to

say why judgment should not be pronounced. Because

no sufficient cause to the contrary was shown, or ap-

peared to the court, the court adjudged the defendant

guilty as charged and convicted and ordered that: The

defendant hereby committed to the custody of the Attor-

ney General or his authorized representative for impris-

onment for a period of TEN (10) YEARS plus a THREE

(3) YEAR period of special parole under count 2. Under

counts 3 and 4, the defendant is committed to the cus-

tody of the Attorney General or his authorized represen-

tative for imprisonment for periods of FIVE (5) YEARS

plus THREE (3) YEAR periods of special parole. The

sentences imposed under counts 3 and 4 shall run con-

currently with each other and with the sentence im-

posed under count 2. Under count 5, the defendant is

committed to the custody of the Attorney General or his

authorized representative for imprisonment for a period

of THREE (3) YEARS plus a THREE (3) YEAR period

of special parole. The sentence imposed under count 5

shall run concurrently with the sentence imposed under

count 2. Under count 6, the defendant is committed to

the custody of the Attorney General or his authorized

representative for imprisonment for a period of ONE (1)

YEAR. The sentence imposed under count 6 shall run

concurrently with the sentence imposed under count 2.

Under counts 7 and 8, the defendant is committed to the

custody of the Attorney General or his authorized repre-

sentative for imprisonment for periods of FOUR (4)

YEARS. The sentence imposed under counts 7 and 8

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shall run concurrently with each other and with the sen-

tence imposed under count 2. Under count 9, the de-

fendant is committed to the custody of the Attorney Gen-

eral or his authorized representative for imprisonment

for a period of ONE (1) YEAR. The sentence imposed

under count 9 shall run concurrently with the sentence

imposed under count 2. Under count 1, the defendant

shall pay a fine of TWENTY-FIVE THOUSAND

($25,000.00) DOLLARS, and the imposition of a prison

sentence is suspended, and the defendant is placed on

probation for a period of FIVE (5) YEARS. The defend-

ant stands committed until the fine is paid or he is other-

wise discharged by law. The order that the defendant

stands committed is stayed until NOON of September 1,

1982. The period of probation herein imposed shall run

consecutively with the period of imprisonment imposed

under count 2.

Execution of the sentences imposed under counts

2, 3, 4, 5, 6, 7, 8 and 9 is stayed for THIRTY (30) DAYS.

/s) DANIEL H. HUYETT, 3RD

Daniel H. Huyett, 3:, J.

* na + hal o

A-18

A TRUE COPY CERTIFIED THIS 30th day of AU-

GUST, 1982.

by: FRANCIS E. DEVINE

Francis E. DeVine, Deputy Clerk

SIGNED BY U.S. District Judge

(] U.S. Magistrate

DANIEL H. HUYETT, 3RD

Daniel H. Huyett, 3rd, J.

Date 8-30-82