Opposition Brief — Di Bella v. United States

In the Supreme Court of the Anite

OCTOBER TERM, 1986

GEOFFREY A. D1 BELLA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether the district court preverly instructed the

jury w'th regard to the element of intent in a prosecution

of a physician for unlawfully dispensing drugs.

2. Whether the indictment properly included a number

of prescriptions for drugs in a single count.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Berkemer v. McCarty, 468 U.S. 420 (1984) ............. 10

United States v. Berardi, 675 F.2d 894 (7th Cir. 1982) .... 10

United States v. Boettjer, 569 F.2d 1078 (9th Cir.), cert.

hdc esvsscssctus cones y

United States v. Greenfield, 554 F.2d 179 (Sth Cir. 1977),

cert. denied, 439 U.S. 860 (1978) ................... 8

United States v. Hayes, 794 F.2d 1348 (9th Cir. 1986),

cert. denied, No. 86-848 (Feb. 23, 1987) ............. 9

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

I Di, SU RUUPOD wo ccc ccc ccc cnceess 10, 11

United States v. Lartey, 716 F.2d 955 (2d Cir. 1983) ..... 10

United States v. Lovasco, 431 U.S. 783 (1977) .......... 10

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

United States v. Norris, 780 F.2d 1207 (Sth Cir. 1986) .... 8

United States v. Robin, 693 F.2d 376 (Sth Cir. 1982) ..... 10

United States v. Vamos, 797 F.2d 1146 (2d Cir. 1986),

cert. denied, No. 86-936 (Jan. 12, 1987) ............. 6,7

United States v. Voorhies, 663 F.2d 30 (6th Cir. 1981)... 8

Statutes, regulation and rule:

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Fed. R. Crim. P.:

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(111)

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 86-1488

GEOFFREY A. D1 BELLA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A4)

is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

November 19, 1986. A petition for rehearing was denied

on January 15, 1987 (Pet. App. AS). The petition for a

writ of certiorari was filed on March 11, 1987. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of New York, petitioner was con-

victed on two counts of distribution of methaqualone, in

violation of 21 U.S.C. 841(a)(1).!' He was sentenced to

' Petitioner was acquitted on the conspiracy count. He had been in-

dicted along with seven co-defendants. All eight were charged with

(1)

2

concurrent terms of two years’ imprisonment, to be

followed by a two-year term of special parole, and he was

fined $5,000.

The evidence at trial established that petitioner was in-

volved in the operation of sham medical clinics that

dispensed prescriptions for Quaalude under the guise of

treating stress or sleep disorders.? The clinics were begun

by a Dr. Martin Feit, who started a “stress clinic” in his

Staten Island office in early 1981 (Tr. 1406, 1866-1869).

He recruited another doctor, co-defendant Greenfarb, to

join him in writing Quaalude prescriptions (Tr. 1411). The

clinic was forced to close in the summer of 1981 because

people in the neighborhood complained that the customers

were selling drugs outside the clinic (Tr. 585, 1412, 1870).

Feit and Greenfarb then moved the business to Manhat-

tan, where it flourished and expanded to additional loca-

tions. More doctors were hired, including petitioner. Tr.

504, 1220, 1266-1267, 1413, 1417-1418.

The clinics functioned ostensibly as legitimate medical

practices, but it was clear from the actual operation of the

clinics that their sele purpose was to sell as many

conspiracy as well as various counts of distribution of methaqualone.

Petitioner was tried with co-defendants Irving Greenfarb, Manuel

Sanchez-Acosta, and Ariz Gourgi. Greenfarb was convicted on the

conspiracy count as well as on two separate counts of distribution of

methaqualone. Sanchez-Acosta was convicted on one count of

distribution and acquitted on the conspiracy count. Gourgi was con-

victed on two substantive counts and acquitted on the conspiracy

count. Three other defendants pleaded guilty; one remains a fugitive.

2 “Quaalude” is the trade name for methaqualone. It is a hypnotic

drug, which during the period at issue in this case was classified as a

Schedule II controlled substance; it could be prescribed as a sleeping

pill. Because of the widespread abuse of the drug, methaqualone has

since been reclassified as a Schedule I controlled substance. As such, it

may not lawfully be prescribed for medical purposes. 21 U.S.C. 829.

3

Quaalude prescriptions each day as possible, to virtually

anyone who could pay the high fees. For example,

although physical examinations were conducted, they were

done entirely by physician’s assistants, not by any of the

medical doctors (Tr. 391). Staff members testified that

urine samples were sometimes discarded without being

analyzed, and that doctors prescribed Quaalude without

even looking at the patients’ electrocardiograms (Tr. 399,

1407). Patient history forms were completed, but they

often contained patently false or inconsistent information,

and simply recited boilerplate responses to indicate that

the “patient” had sleep problems (Tr. 389, 871, 2113; GXs

20077, 20078, 20406, 40417, 40570). A doctor would

typically spend about five to ten minutes with each client,

and almost invariably write him or her a prescription for

Quaalude, for a fee of $150 to $200 in cash (Tr. 1132-1133,

1139, 1355, 1364).

Most clinic doctors, including petitioner, were paid a

flat rate of $2,000 to $3,000 per day; co-defendants Green-

farb and Sanchez-Acosta were paid on a per patient basis

of $20 or $40 for each prescription written. Records main-

tained by the clinics showed that all the doctors wrote

Quaalude prescriptions for more than 90% of the patients

they saw; petitioner wrote Quaalude prescriptions for

98.7% of the clients he saw (Tr. 166-170; GX 3). Over one

27-day period of seeing clients, petitioner wrote 771

Quaalude prescriptions, or an average of almost 30 per

day. He failed to prescribe Quaalude for only eight

customers he saw during that period (GX 3).

Two undercover agents from the Drug Enforcement

Administration visited the clinics in 1981 and 1982. On

December 3, 1981, one agent, vsing the name “Michael

Bates,” received a Quaalude prescription from petitioner

after paying $200 in cash. Two weeks later the same agent,

using an entirely different name, again saw petitioner and

received another prescription. He was never questioned

4

about using different names. Tr. 1126, 1132-1133, 1135,

1139-1140. The other agent had a similar experience on

two different visits, one week apart, with co-defendant

Greenfarb (Tr. 1354-1359).

The government was also assisted in its investigation by

a physician, Dr. Gregory Drezga, who agreed to accept a

job at one of the clinics (Tr. 1645). On the first day of his

employment, Dr. Drezga saw a patient who had previously

received a Quaalude prescription from Dr. Greenfarb. Dr.

Drezga, however, refused to give the patient a Quaalude

prescription, but instead offered her a mild form of tran-

quilizer, Dalmane. The patient became extremely upset

and refused to pay for her visit to the clinic. Tr. 1656,

1819-1825. When Dr. Drezga made it clear to the

operators of the clinic that he would not prescribe

Quaalude indiscriminately, he was asked to leave the clinic

(Tr. 1658; GX 19). The same patient returned to the clinic

on three subsequent occasions and was given Quaalude

prescriptions, twice by petitioner and once by Greenfarb

(Tr. 1826-1828; GXs 2397, 4134, 3001E, 3003N).

Three witnesses who were qualified as experts on sleep

disorders and the use of sedatives testified that no good

faith medical practice was being conducted at the clinics.

They based their conclusions on several factors: the huge

volume of prescriptions, the very short time spent with

each patient, aiid the superficial nature of the notations on

the patients’ charis (Tr. 870, 2106); the fact that virtually

none of the patients had been referred by other physicians,

when just the opposite would be typical at a bona fide

sleep clinic (Tr. 875, 2109-2110); the fact that the clinics’

patients included very few older people, for whom sleep

problems are quite common, and that the majority of the

patients were in age groups in which Quaalude abuse is

common (Tr. 893, 2125-2126); and the lack of any other

treatment for sleep problems, when a variety of treatments

are commonly recommended, such as psychotherapy or

5

behavior modification (Tr. 868, 2118). In fact, the experts

testified that Quaalude is rarely prescribed as a treatment

for sleep disorders, and that the defendants prescribed it

indiscriminately and inappropriately in many cases (Tr.

862-863, 2077, 2108, 2131).

Each of the defendants testified. Each claimed that he

had acted in good faith and had prescribed medication for

what he believed were legitimate medical problems.

ARGUMENT

1. Petitioner contends (Pet. 11-20) that he was

improperly convicted of illegally dispensing drugs because

an erroneous standard of criminal intent was used to

determine whether he had dispensed the drugs in the

course of good faith medical treatment. He argues that the

district court erred by giving an instruction under which

the jury could have convicted him without regard to his

subjective intent, based solely on an objective evaluation

that petitioner’s practice did not conform to accepted

medical practices. He also claims that the use of an er-

roneous standard of intent caused the court of appeals to

err in its evaluation of the sufficiency of the evidence. In

fact, the instruction on intent correctly stated the law, and

there is no doubt that the evidence in this case was suffi-

cient to support the jury’s verdict.

a. Petitioner takes issue with the following instruction

(Pet. 7; Tr. 3528):

“If a doctor dispenses a drug in good faith in

medically treating a patient, [then the] doctor has

dispensed the drug for a legitimate purpose in the

usual course of medical practice; that is, he has

dispensed a drug lawfully.

Good faith in this context means good intentions

and the honest exercise of the best professional judg-

ment as to the patient’s needs. It means the doctor

6

acted in accordance with what he reasonably believed

to be proper medical practice.”

Petitioner argues that this instruction allowed the jury to

ignore his subjective intent and to convict on the purely

objective determination that his conduct in dispensing

drugs was not in keeping with generally accepted medical

practice.

Petitioner does not point to any instruction in which the

jury was told that it could convict without regard to

criminal intent. The instruction quoted above requires

proof that the defendant was not acting with “good inten-

tions” and in “the honest exercise of the best professional

judgment.” It therefore explicitly required proof of sub-

jective intent.

Petitioner focuses on the words “reasonably believed” in

the instruction and argues that those words convert the in-

Struction from one requiring proof of subjective intent to

one permitting conviction under an objective standard of

liability. But the reference to “reasonable belief” in the

quoted instruction did not have that effect at all. Rather,

that term was used in conjunction with the reference to the

standard of proper medical practice, in order to make

clear to the jury that a physician is required to know of,

and to conform to, accepted norms of medical practice

when prescribing controlled substances. As the court of

appeals made clear in its earlier decision in United States

v. Vamos, 797 F.2d 1146, 1152 (1986), cert. denied, No.

86-936 (Jan. 12, 1987), the term “proper medical practice”

refers to an objectively ascertainable standard of conduct

deemed appropriate by the medical community, not to the

idiosyncratic views of particular physicians. That standard

of conduct is derived from the regulation governing the

authority of physicians to prescribe controlled substances.

The regulation, and the applicable statute, 21 U.S.C. 829,

grant physicians a limited exemption from the general pro-

hibition against distribution of controlled substances,

7

as long as the prescription is “issued for a legitimate

medical purpose by an individual practitioner acting in the

usual course of his professional practice.” 21 C.F.R.

1306.04(a). The regulation adds that an order “purporting

to be a prescription issued not in the usual course of pro-

fessional treatment” is not a “prescription” within the

meaning of the stautory exemption for physicians. /bid.

The court of appeals, both in this case and in Vamos,

was referring only to what constitutes accepted medical

practice when it stated that an objective standard is to be

applied. There is no suggestion that the defendant physi-

cian’s intent to commit a crime is irrelevant; the court’s

point was simply that the physician’s own particular view

of what is accepted medical practice does not control that

aspect of the legal standard. If the rule were otherwise, a

_physician could too readily avoid the strict limitations that

Congress sought to impose on the medical application of

Schedule II substances, simply by asserting a belief —no

matter how unreasonable —that the substance in question

could properly be prescribed for a variety of medical con-

ditions. See United States v. Moore, 423 U.S. 122, 138-145

(1975). The standard applied by the court of appeals is not

one of strict liability: even if the physician’s conduct is out-

side the scope of proper medical practice, the physician is

protected from criminal liability if he believes he is acting

according to proper medical standards, as long as that

belief is reasonable. In light of the stringent restrictions

imposed on the prescription of controlled substances,

there is nothing improper about holding physicians to that

modest standard. As the court of appeals noted in Vamos,

“(t]o permit a practitioner to substitute his or her views of

what is good medical practice for standards generally

recognized and accepted in the United States would be to

weaken the enforcement of our drug laws in a critical

area” (797 F.2d at 1153).

8

The instructions given in this case do not conflict with

any of the formulations approved by other courts of ap-

peals. Petitioner alleges that-there is a conflict between this

‘case and decisions from several other circuits, claiming

that those courts apply a subjective rather than an objec-

tive standard of liability for physicians charged with

unlawfully prescribing controlled substances. This conten-

tion is incorrect for two reasons. First, as we have noted,

the court in this case did not subscribe to an objective test

for the element of intent. The defendant must be shown to

have intended to distribute controlled substances and to

have done so other than in a good faith effort to provide

legitimate medical treatment. The court applied an objec-

tive standard only to the extent that it required that the

physician’s belief that he is engaged in proper medical

practice be a reasonable one. Second, the other court of

appeals decisions on which petitioner relies do not reject

this approach. The Fifth Circuit, in United States v.

Greenfield, 554 F.2d 179, 182 (1977), cert. denied, 439

U.S. 860 (1978), simply noted the general point that the in-

quiry into intent is a subjective one; the court did not sug-

gest that the defendant’s belief that he was engaged in

proper medical practice could not be judged according to a

test containing an objective as well as a subjective compo-

nent. Indeed, a more recent Fifth Circuit case specifically

approved a jury instruction on the issue of the defendant’s

belief regarding standard medical practices that contained

both subjective and objective components. See United

States v. Norris, 780 F.2¢ 1207, 1209 (Sth Cir. 1986); ac-

cord United States v. Voorhies, 663 F.2d 30, 33-34 (6th

Cir. 1981).3

>Most of the other court of appeals cases cited by petitioner (Pet. 13

n.12, 15-16) as conflicting with the decision in this case do not even

address the question of whether the test for determining the defend-

ant’s adherence to proper medical practice is in part an objective one.

We are aware of no case in which a court of appeals has reversed a

conviction because of a charge like the one given in this case, or even

9

b. Petitioner also claims that the court of appeals used

a standard for assessing the sufficiency of the evidence

that conflicts with decisions from other circuits. This

claim is entirely without merit. The court below summar-

ized the evidence briefly in finding that the evidence was

quite clearly sufficient, and its review was very similar to

that undertaken by other courts in like cases. Petitioner

contends that the court of appeals failed to consider any of

the “non-physician-like features” of petitioner’s practice.

In fact, the court of appeals considered the very type of

factors urged by petitioner. The court observed that

prescriptions for the same medication were written for

more than 95% of petitioner’s patients; the court referred

to the very brief patient examinations and extremely high

fees; and the court noted the expert testimony explaining

that the medical operation was a sham (Pet. App. A 2).

The court of appeals could have detailed the facts more

elaborately, but it found that unnecessary in light of the

abundant proof that petitioner was not engaged in a bona

fide medical practice.

2. Petitioner also complains (Pet. 20-22) that he was

charged in each count with the writing of numerous

prescriptions, and that the evidence failed to prove that

criticized such a charge. The Ninth Circuit has criticized a charge that

could be read to suggest that a physician would be liable if he failed to

act in accordance with recognized medical standards, but that charge

did not contain the proviso that the physician would not be liable if he

reasonably believed he was acting in accordance with such standards,

as did the charge in this case. See United States v. Boettjer, 569 F.2d

1078, 1082 (9th Cir.), cert. denied, 435 U.S. 976 (1978). Subsequent to

Boettjer, the Ninth Circuit approved and endorsed an essentially ob-

jective standard when it approved a jury instruction which said that

prescribing a controlled substance to a narcotic addict who did not

have a medical complaint other than addiction or withdrawal would

not constitute the good faith practice of medicine. United States v.

Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986), cert. denied, No. 86-848

(Feb. 23, 1987).

10

each specific prescription was unlawfully written.* He

claims a conflict in this respect with the Sixth Circuit’s

decision in United States v. Kirk, 584 F.2d 773, cert.

denied, 439 U.S. 1048 (1978), in which the court stated

that an “essential element in these counts is that a prescrip-

tion was issued to a specific person in each count,

unlawfully and knowingly for the purpose of distributing

controlled substances” (id. at 786).

First, petitioner failed to raise this issue below and

therefore may not raise it here. Berkemer v. McCarty, 468

U.S. 420, 443 (1984); United States v. Lovasco, 431 U.S.

783, 788-789 n.7 (1977). Moreover, to the extent his com-

plaint is that the indictment was duplicitous, his failure to

raise the claim before trial constitutes a waiver. Fed. R.

Crim. P. 12(b)(2) and (f); United States v. Lartey, 716

F.2d 955, 968 (2d Cir. 1983).

In any event, it was not improper for the indictment to

group large numbers of prescriptions together in each

count. Petitoner’s course of conduct at each clinic

represented a single, continuing scheme. It therefore was

not necessary to charge each act of writing a prescription

in a separate count. None of the dangers commonly posed

by duplicitous indictments was present here: inadequate

notice of the charges, exposure to the risk of double

jeopardy, prejudicial evidentiary rulings, and the risk of

conviction by a non-unanimous verdict. United States v.

Robin, 693 F.2d 376, 378-379 (Sth Cir. 1982); United

States v. Berardi, 675 F.2d 894, 897-899 (7th Cir. 1982).

4 Petitioner was charged in Count Eight with having unlawfully

dispensed, between November 10, 1981, and February 18, 1982, at the

34th Street Clinic, “outside the scope of professional medical practice,

approximately 33,240 dosage units of Quaalude.” In Count Nine he

was similarly charged with dispensing “approximately 5812 dosage

units of Quaalude” at another clinic, between March 1, 1982, and

June 30, 1982. Pet. App. A8.

11

The approach used in the indictment in this case, in

which each count of the indictment alleged a pattern of

prohibited conduct, did not create a conflict with the Sixth

Circuit’s decision in United States v. Kirk, supra. In that

case, each of the counts to which the court of appeals was

referring alleged a single illegal prescription. Obviously,

the proof at trial in Kirk had to conform to those specific

allegations. Because the Sixth Circuit was not addressing a

case in which a pattern of unlawful conduct had been

charged in each count, the passage from which petitioner

quotes cannot be read to suggest that charging in that

fashion would be improper.

In this case, in contrast with Kirk, it was alleged that all

of the prescriptions for Quaalude issued by the defendants

in the course of their operation of the named clinics were

unlawful, because the clinics were not operated as genuine

medical practices and were actually just outlets for illegal

drug distribution. The proof at trial showed exactly that.

The records maintained by the clinics and the testimony of

staff and “patients,” undercover agents, and several expert

witnesses all established that none of the Quaalude

prescriptions was issued for a bona fide medical purpose,

because no true medical practice was being operated. In

light of the allegations and corresponding proof in this

case, there was no need for the jury to focus on each par-

ticular prescription and determine whether it was

unlawfully written. The evidence was sufficient for the

jury to find that petitioner unlawfully dispensed as many

Quaalude prescriptions as the records showed he wrote at

the “stress clinics.”

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

MAY 1987

US. GOVERNMENT PRINTING OFFICE: 1987— 181-483/40346