# Petition — Sarian v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1022

## Text

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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CONSTITUTIONAL AND STATUTORY
PRP WEUURsIN BINVORAVERD 0066 ree eee

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

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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 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

A-17

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0931%3A1. Public record. Not legal advice.