Opposition Brief — Hayes v. United States

FILED

(6) Supreme Court, U.S, 4

o :

In the Supreme Court of the

OCTOBER TERM, 1986

JUDE R. HAYES, PETITIONER -

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(212) 633-2217

\WA

QUESTION PRESENTED

Whether warrants that authorized the search of peti-

tioner’s medical offices for records documenting the pur-

chasing, dispensing and prescribing of controlled

substances were overbroad under the Fourth Amendment.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES:

Cases:

Andresen v. Maryland, 427 U.S. 463 (1976) ............ 44-81

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ....... 7

Grand Jury Proceedings, In re, 716 F.2d 493 (1983) ..... 2

Illinois v. Gates, 462 U.S. 213 (1983) .................. oi:

National City Trading Corp. v. United States, 635 F.2d

re ee ay wrk x die ane cus 8

United States v. Abrams, 615 F.2d 541 (1st Cir. 1980) .... 10

United States v. Brien, 617 F.2d 299 (1st Cir.), cert.

OT 8,9

United States v. Bright, 630 F.2d 804 (Sth Cir. 1980) ..... 7

United States v. Cardwell, 680 F.2d 75 (9th Cir. 1982) ... 1}

United States v. Ellison, 793 F.2d 942 (8th Cir. 1986),

cert. denied, No. 86-5484 (Nov. 3, 1986) ............. 9

United States v. Faul, 748 F.2d 1204 (8th Cir. 1984),

Geen, anes, @ 72 Um. Wes C1985) .................. 11

United States v. Hillyard, 677 F.2d 1336 (9th Cir. 1982) .. 8

United States v. Kail, 804 F.2d 441 (8th Cir. 1986) ....... 7

United States v. Lamport, 787 F.2d 474 (10th Cir. 1986),

cert. denied, No. 85-7219 (Oct. 6, 1986) ............. y

United States v. McClintock, 748 F.2d 1278 (9th Cir.

1984), cert. denied, No. 84-1883 (Oct. 7, 1985) ........ 8

United States v. McQuisten, 795 F.2d 858 (9th Cir.

Ne Reh ee ek ke gb Ke y

United States v. Offices Known as 50 State Distributing

Co., 708 F.2d 1371 (9th Cir. 1983), cert. denied, 465

re why pig ely b-ad wa 4 es os 8

United States v. Sawyer, 799 F.2d 1494 (11th Cir.

Sota dra MIRE CR ea 8

IV

Cases — Continued:

United States v. Travisano, 724 F.2d 341 (2d Cir. 1983) ..

United States v. Ventresca, 380 U.S. 102 (1965) .........

Voss v. Bergsgaard, 774 F.2d 402 (10th Cir. 1985) ......

Constitution and statute:

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Be rc Ie ss he aoc os a cee oe ee

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OO O

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1986

No. 86-848

JUDE R. HAYES, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 79-116)

is reported at 794 F.2d 1348. The opinion of the district

court (Pet. App. 28-78) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 9, 1986. A petition for rehearing was denied on Oc-

tober 1, 1986 (Pet. App. 117-118). The petition for a writ

of certiorari was filed on November 24, 1986. The jurisdic-

tion 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 Florida, petitioner was con-

victed on 281 counts of unlawfully dispensing controlled

substances, in violation of 21 U.S.C. 841(a)(1).' Petitioner

' Petitioner was charged with 640 counts of unlawful distribution of

controlled substances. The jury acquitted petitioner on eight counts,

(1)

2

was sentenced to three years’ imprisonment, a $100,000

fine, a special parole term of three years, and a con-

secutive term of three years’ probation. The court of ap-

peals affirmed (Pet. App. 79-116).

1. On July 28, 1982, the government secured warrants

to search petitioner’s medical offices in Farmersville,

Ivanhoe, and Porterville, California. In support of the

warrants, the government submitted the affidavit of Craig

C. Winstead, a Special Agent with the California Bureau

of Narcotic Enforcement, together with several at-

-tachments. Agent Winstead’s affidavit recited, at the

outset, that one of petitioner’s patients had told a Bureau

of Narcotics Enforcement agent that petitioner had

prescribed Dilaudid, Percodan, and Demerol for him

without a prior physical examination. As a result of the

prescriptions, the affidavit stated, the patient had become

addicted to Percodan. An examination of triplicate

prescriptions filed with the Bureau of Narcotics Enforce-

ment confirmed that petitioner had prescribed those drugs

for the patient (Winstead Aff. at 1).

Thereafter, the affidavit reported, a deputy from the

Tulare County Sheriff's Department, acting in an under-

cover capacity, went five separate times to petitioner’s

Porterville office and requested prescriptions for Per-

codan. On the first visit, petitioner issued a prescription

for another drug, Vicodin, without performing a physical

examination and in the absence of any medical indication

for the drug. Later the same month, and on three separate

occasions thereafter, the undercover deputy again re-

quested Percodan prescript: «s. Each time petitioner

issued the requested prescription without performing a

and it was unable to reach a verdict on 274 counts. Prior to trial, the

government moved to dismiss 77 of the counts. Following trial, the

government moved to dismiss the 274 counts on which the jury could

not reach a verdict.

physical examination, and in the absence of any indicated

medical need for the drug. Winstead Aff. at 1-3.?

According to the affidavit, the California Bureau of

Narcotic Enforcement subsequently gathered from its files

copies of prescriptions for Schedule II drugs issued by

petitioner and filled by pharmacies between February and

September 1981. Authorities also secured from 15 phar-

macies in Tulare County an additional 5,211 prescriptions

issued by petitioner for controlled substances. Froin inose

records, investigators developed 75 patient profiles. For

each profiled patient, the investigators indicated the quan-

tities of drugs prescribed and the frequency with which

prescriptions had been issued. The investigators then sent .

the profiles to a medical consultant. The consultant con-

cluded that it was “highly probable” that in 58 of the 75

profiled cases petitioner had “caused, abetted, or pro-

longed addi[cjtion or habituation to controlled sub-

stances.” Winstead Aff. at 3-4.

The affidavit further recited that federal agents had

learned from petitioner’s Porterville receptionist that half

of petitioner’s patients were either present or former

heroin addicts; that petitioner had in the past run a

methadone clinic in Tulare County and was presently

treating some of his former patients from that clinic; and

that petitioner operated offices in Ivanhoe and Farmers-

2 During the deputy’s visit to petitioner’s office in October 1981,

petitioner inquired whether she had located her X-rays. When she said

that she had not, petitioner said that he did not need them. He then

filled out a prescription for Percodan while at the same time taking a

phone call from his bookkeeper. The next month, petitioner pre-

scribed more Percodan after inquiring whether the deputy had any

“serious problems” and learning that she had none. Finally, in

December 1981, the deputy told petitioner that she could not afford to

have X-rays taken. Petitioner said that this was “okay” but that the

deputy would have to get some X-rays because petitioner needed

documentation to justify to state authorities his prescription of

Schedule II narcotics. See Exhs. C, D, and E to the Winstead af-

fidavit.

4

ville, as well as Porterville, and that he employed other

doctors at those offices. The affidavit also noted that

while agents were checking prescriptions written by peti-

tioner, they discovered several prescriptions for Schedule

II drugs that had been issued by doctors working for peti-

tioner at his various offices; the medical consultant con-

cluded that some of those prescriptions had been written

for patients whom the consultant determined to be ad-

dicted to controlled substances. Winstead Aff. at 4-5.

Based on the affidavit, the magistrate issued warrants to

search each of petitioner’s offices. The warrants author-

ized the agents to search for and seize the following items

(Pet. App. 99 (footnote omitted)):

(1) demerol (mependine), morphine sulfate and other

controlled substance[s]; (2) all records which docu-

ment the purchasing, dispensing and prescribing of

controlled substances, including, but not limited to,

records contained in patient charts and all relevant

records required to be maintained by Title 21 of the

Code of Federal Regulations, Part 1300 to end and

Sections 11190 and 11191 of the California Health and

Safety Code; (3) patient logs, appointment books and

other records and ledgers reflecting distribution of

controlled substances[]; (4) correspondence concern-

ing the procuring, transferring, administering,

prescribing or dispensing of controlled substances by

[petitioner]; all of which constitute evidence of possi-

ble violations of 21 USC. 84l{a)(1) and 21 USC

843(a)(3).

On July 29, 1982, agents and other officers executed the

three warrants (Pet. App. 29).

3 In two of the warrants, that provision read: “patient logs, ap-

pointment books and other records and ledgers reflecting patient visits

to [petitioner] or his employees, constituting evidence of illegal

distribution of controlled substance.”

2. Petitioner thereafter instituted a civil action for the

return of the records, claiming, inter alia, that the search

warrants were unconstitutionally overbroad. The district

court held that while there was probable cause to issue a

search warrant, the warrants issued here were too broad

(Pet. App. 23). The court therefore ordered that the seized

records be returned unless petitioner was indicted by

February 1, 1983 (Pet. App. 27).

Petitioner was indicted on January 28, 1983 (Pet. App.

81). Prior to trial he moved, before a different district

judge, to suppress the evidence seized on July 29. The

district court held an extensive suppression hearing, and

on September 28, 1983, the court denied petitioner’s mo-

tion (Pet. App. 28-78).* The court held, first, that the war-

rants did not, as petitioner contended, authorize the

seizure of all patient records, but rather limited the agents

to records reflecting the prescription or distribution of

controlled substances (Pet. App. 53-54). The court further

held that it was not necessary to confine the warrants, as

petitioner contended (Pet. App. 53), to the 58 profiles

specified in the affidavit (Pet. App. 54). To the contrary,

the court agreed (ibid.) that “[t]he affidavit establishes

probable cause to believe that files other than those set

_forth in the affidavit would contain evidence of unlawful

prescriptions of controlled substances.” The court also

observed (ibid.) that “[i]t would defy common sense to

conclude that probable cause was limited solely to the

records specifically referred to in the search warrant af-

fidavit because of the inferences which may be drawn that

defendant was prescribing controlled substances in viola-

tion of law over a period of several months at least and to

many people.” Finally, the district court concluded (Pet.

* Petitioner did not contend at the hearing that the judgment in the

prior civil action estopped the government from contesting his motion

to suppress (Pet. App. 81-82).

6

App. 55-64) that any lack of particularity in the warrants

was cured by the affidavits submitted in support of the

warrants and, in any event, that a more precise description

of the items to be seized was not possible.

3. The court of appeals affirmed by a divided vote

(Pet. App. 79-104). The court agreed with petitioner that

because the affidavit had not been attached to the war-

rants, it could not be considered in determining whether

the warrants were overbroad (Pet. App. 97-98). The court

concluded, however, that the affidavit established suffi-

cient probable cause to justify the search and seizure of a

large volume of records (Pet. App. 99-101). In particular,

the court held (Pet. App. 102-103) that the warrants need

not have been limited to the 58 profiled patients identified

by the medical examiner. “Such a conclusion,” the court

observed (Pet. App. 103), “ignores the magistrate’s find-

ing, unchallenged on appeal, of probable cause to seize all

documents concerning controlled substances.” Finally, the

court rejected (Pet. App. 101-102) petitioner’s claim that

the warrants failed to provide standards for determining

which files could properly be seized. The court noted (Pet.

App. 101) that the warrants limited the seizure solely to

those documents that reflected the distribution of con-

trolled substances.°®

Judge Pregerson dissented (Pet. App. 105-116). In his

view, the warrant should have been restricted to the 58 pa-

tients and drugs expressly identified in the affidavits (Pet.

App. 110-111). Judge Pregerson also believed that the

warrants covering the Farmersville and Porterville offices

> The court also rejected several other challenges to the search and

seizure, which are not presented by the petition. Pet. App. 32-53,

65-78.

© The court also rejected various challenges to the tria’ court’s in-

Structions to the jury (Pet. App. 82-95). Petitioner does not renew

these challenges in the petition.

| 7

were improper, in that they purportedly required the

agents to determine whether an item was evidence of a nar-

cotics violation before the item could be seized (Pet. App.

107-109).

ARGUMENT

1. Petitioner contends (Pet. 8-13) that the warrants

were overbroad and should have been limited to the files

of the 58 patients whom the medical consultant found to

have received excessive prescriptions of Schedule II drugs.

The court of appeals properly rejected this claim.

The Fourth Amendment particularity requirement is

designed to prevent “ ‘general, e®ploratory rummaging in

a person’s belongings.’ ” Andresen v. Maryland, 427 U.S.

463, 480 (1976) (quoting Coolidge v. New Hampshire, 403

U.S. 443, 467 (1971)). But where the underlying affidavit

establishes sufficiently broad probable cause, the warrant

may authorize a comparably broad search and seizure. For

example, in United States v. Bright, 630 F.2d 804 (Sth Cir.

1980), the defendant contended that a search warrant

should have been limited to currency bearing particular

serial numbers, in view of the fact that the government

knew before the search that currency with those serial

numbers would be found in the defendant’s house. Reject-

ing that contention, the Fifth Circuit held that because the

government had established probable cause to search for

more than those specific bills, the warrant was entitled to

encompass all currency in the defendant’s possession. 630

F.2d at 811-812.

More recently, the Eighth Circuit made the same point

in United States v. Kail, 804 F.2d 441 (1986). There, the

court upheld a warrant that permitted the seizure of

“almost all of the [defendant’s}] business records.” The

court reasoned that “there was probable cause to believe

that fraud permeated the entire business operation.” 804

F.2d at 445.

a

8

The First Circuit took the same view in United States v.

Brien, 617 F.2d 299, cert. denied, 446 U.S. 919 (1980). In

that case the court of appeals approved a warrant that

concededly covered most of the defendant’s business

records (617 F.2d at 306). The court determined that the

affidavit in support of the warrants showed that the de-

fendant’s fraud was “so extensive as to justify a belief by

the magistrate that all these documents were likely to con-

stitute evidence of the crimes under investigation” (ibid.).

Like petitioner, the defendant in Brien contended that the

warrant should have been limited to the particular

customers about whom the authorities had specific infor-

mation. The First Circuit rejected that claim, noting (id. at

307-308) that there was a sufficient basis to believe that the

defendant had engaged in similar practices with his other

customers. Accord United States v. Sawyer, 799 F.2d

1494, 1508 (11th Cir. 1986) (holding that evidence of per-

vasive fraud justified a warrant that was not limited to the

25 transactions specified in the affidavit); United States v.

McClintock, 748 F.2d 1278 (9th Cir. 1984), cert. denied,

No. 84-1883 (Oct. 7, 1985); United States v. Offices

Known as 50 State Distributing Co., 708 F.2d 1371 (9th

Cir. 1983), cert. denied, 465 U.S. 1021 (1984); United

States v. Hillyard, 677 F.2d 1336 (9th Cir. 1982); National

City Trading Corp. v. United States, 635 F.2d 1020 (2d

Cir. 1980).

Here, the warrant (Pet. App. 99) confined the agents to

searching for and seizing only “documents dealing with the

distribution of controlled substances” (Pet. App. 101

(footnote omitted)). The court of appeals’ fact-bound

determination (Pet. App. 100-101, 102-103) that there was

ample probable cause to justify such a search is correct.’

” In assessing the sufficiency of probable cause this Court has made

it clear that the issuing magistrate is to “make a practical, com-

monsense decision whether, given all the circumstances set forth in the

affidavit before him, * * * there is a fair probability that contraband

ee

9

The affidavit did not simply disclose 58 discrete cases of

unwarranted narcotics distribution. Rather, the affidavit

showed — particularly in its description of the experience

of the undercover police officer —that petitioner routinely

dispensed controlled substances to patients on demand, in

the absence of the slightest indication of medical necessity.

Thus, the issuing magistrate was entitled to infer, as the

district court found (Pet. App. 54), that the 58 profiled

cases of illegal dispensing of controlled substances

represented merely “the tip of the iceberg” (United States

v. Brien, 617 F.2d at 308).

The court of appeals’ decision in this case is not in con-

flict with the decision of the Tenth Circuit in Voss v.

Bergsgaard, 774 F.2d 402 (1985). There, the affidavit sup-

porting the warrant alleged a scheme of tax fraud. The

bulk of the warrant, however, was not restricted to

evidence of tax fraud. Rather, it permitted the agents to

search for evidence of “any federal crime” (774 F.2d at

404-405). Thus, while the court agreed that a search may

properly embrace “all of an organization’s records,” the

evidence in Voss did not justify so broad a warrant (id. at

406). In the present case, by contrast, the warrant

authorized the seizure only of documents relating to the

or evidence of a crime will be found in a particular place.” //linois v.

Gates, 462 U.S. 213, 238 (1983). A reviewing court need only ensure

that the magistrate had a “substantial basis” for finding that probable

cause existed (id. at 238-239), bearing in mind that affidavits are to be

reviewed “in a commonsense and realistic fashion” (United States v.

Ventresca, 380 U.S. 102, 108-109 (1965)), and that the judgment of

the issuing magistrate is entitled to considerable deference (Ventresca,

380 U.S. at 109; United States v. McQuisten, 795 F.2d 858, 861 (9th

Cir. 1986); United States v. Ellison, 793 F.2d 942, 946 (8th Cir. 1986),

cert. denied, No. 86-5484 (Nov. 3, 1986); United States vy. Lamport,

787 F.2d 474, 476-477 (10th Cir. 1986), cert. denied, No. 85-7219

(Oct. 6, 1986); United States v. Travisano, 724 F.2d 341, 345 (2d Cir.

1983)).

10

purchasing, dispensing, and prescribing of controlled

substances — for which both of the lower courts concluded

that ample probable cause had been established.

Petitioner’s. reliance (Pet. 12-13) on United States v.

Abrams, 615 F.2d 541 (1st Cir. 1980), is equally mis-

placed. The court of appeals in that case held that a search

warrant that authorized the seizure of all of a doctor’s

medical records was overbroad. The court noted that the

warrant provided utterly “no description as to what

specific records are to be seized” (615 F.2d at 543). The

agents were thus free to seize all of the records on the

premises, and they did so (id. at 544). The court in Abrams

acknowledged that an affidavit that establishes that

“fraudulent practices were regularly pursued” could sup-

port “the seizure of all records of Medicare and Medicaid

services billed” (id. at 545). The court concluded, however,

that the affidavit at issue in that case did not provide prob-

able cause for such a broad search (id. at 544 & n.7). The

present case is distinguishable from Abrams on two

grounds. First, as both courts below found, the probable

cause in this case justified a broad warrant. Second, unlike

the warrant in the Abrams case, the warrants in this case

limited the search to a particular category of records —

those that reflected the dispensing 4f controlled

substances. The court of appeals’ determination that the

evidence recited in the affidavit justified the scope of the

warrants in this case merits no further review.°

8 Petitioner relies (Pet. 8, 12) on the purported concessions of the

prosecutor at oral argument in the court of appeals that the warrants

should have been limited solely to Schedule II drugs and that the

failure to limit them was a “mistake.” Petitioner’s reliance is mis-

placed. First, as the court of appeals observed (Pet. App. 103 n.2), the

prosecutor conceded only that he had failed to review the fina/ draft

of the affidavits and warrants; he made clear that he had assisted in

preparing the initial drafts. Moreover, the prosecutor did not agree

that the warrants were legally overbroad; to the contrary, he insisted

;

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2. Petitioner is likewise mistaken in his contention

(Pet. 13-17) that the warrants were not sufficiently par-

ticularized to satisfy the requirements of the Fourth

Amendment. Petitioner reasons, first (Pet. 14), that

because two of the warrants permitted the agents to seize

documents that “constitut[ed] evidence of illegal distribu-

tion of controlled substances,” the agents were forced to

“distinguish between legal and illegal distribution” and

thus were left without sufficient guidance from the face of

the warrants. But petitioner overlooks the fact, noted by

the court of appeals (Pet. App. 104 n.3), that every docu-

ment embraced by this allegedly improper category was

also covered by the perfectly proper category, contained in

each of the warrants, which called for all records reflecting

the dispensing of narcotics. The law is clear that even if a

portion of a warrant is overbroad, the overbroad portion

may be severed and the evidence that was seized under the

valid remainder may be admitted at trial. See Andresen v.

Maryland, 427 U.S. 463, 482 n.11 (1976); United States v.

Faul, 748 F.2d 1204, 1219 (8th Cir. 1984), cert. denied,

472 U.S. 1027 (1985); United States v. Cardwell, 680 F.2d

75, 78 (9th Cir. 1982). Thus, even if two of the warrants

contained an overbroad clause, the valid remainder of

those warrants entitled the agents to search for and law-

fully seize the very same documents.

Petitioner is also mistaken in claiming that the warrants

did not require a nexus between the items to be seized and

probable violations of law. The affidavit established that

petitioner was routinely dispensing narcotics to patients,

regardless of any medical need and in the absence of any

medical evaluation. Detailed profiles of some 75 of these

patients confirmed that petitioner or his employees had

prescribed excessive narcotics in more than three-quarters

at oral argument (Pet. App. 104 n.4) that the affidavit established suf-

ficient probable cause to justify warrants that covered all documents

reflecting narcotics transactions.

12

of the profiled cases. In making the “practical, common-

sense decision” entrusted to him (J/linois v. Gates, 462

U.S. 213, 238 (1983)), the magistrate was entitled to con-

clude that all of petitioner’s documents relating to the

dispensing of narcotics were likely to be evidence of viola-

tions of the narcotics law.®

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

DEBORAH WATSON

Attorney

JANUARY 1987

% The Eighth Circuit’s decision in Jn re Grand Jury Proceedings, 716

F.2d 493 (1983), on which petitioner relies (Pet. 16-17), is easily

distinguishable. In that case the court of appeals held unconstitutional

a warrant that authorized the seizure of all of the records of the ap-

pellant’s bail bonding business. The court noted (716 F.2d at 497) that

the warrant was not limited to any category of documents and did not

even identify “the offenses on which evidence was sought.” Moreover,

the court held (id. at 499-502) that the underlying affidavit did not

provide sufficient probable cause for any search at all. Here, by con-

trast, the warrants limited the search and seizure to documents reflect-

ing narcotics transactions; they specified the crimes for which the

evidence was sought; and, as the courts below concluded, they were

amply supported by probable cause.