Petition for Writ of Certiorari — Vamos v. United States

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86 =9 $6. Z Supreme Court, U.S.

ee ee.

DEC 6 1986

No.: JOSEPH F. SPANIOL, JR,

CLERK

IN THE

Supreme Court of the United States

October Term, 1986

VICTORIA VAMOS,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOEL A. BRENNER

Attorney for Petitioner

76 Tompkins Street

East Northport, New York 11731

(516) 757-9189

Questions Presented

Whether petitioner was competent to be tried and

sentenced and whether the procedures for determin-

ing her competence were statutorily and constitu-

tionally adequate?

Whether petitioner could be convicted of aiding and

abetting a violation of the record-keeping require-

ments of 21 U.S.C. § 843 without proof that she

knew the person she was aiding was a “registrant’”’

and without proof that she knew the records were

required to be kept by federal law?

Whether the “‘good faith’ defense is determined by

an objective or subjective standard?

Whether “expert” testimony was properly admitted?

Whether the imposition of a prison sentence consti-

tutes cruel and unusual punishment?

List of Parties

The trial and conviction from which petitioner now

appeals involved no other parties.

Table of Contents

Questions Presented. ©... 500k. cases sankeevwnnes i

Liek Of POWes sic ier ee eee i

Golmhoen Til oo. 5 5 AR eee 1

jue: 26k oi Ee eee 2

Constitutional Provisions and

Matubes lawiiwee oss Ase ee 2

Statement of the Came i405. cd cel ee eevee 11

Reasons for Granting the Writ ................... 13

I This Court Should Grant Certiorari to

Determine Whether Petitioner Was

Properly Found Competent to Proceed. ...... 13

II This Court Should Grand Certiorari

to Determine Whether Proof of Aiding

and Abetting a Violation of the Record-

Keeping Obligation Under 21 U.S.C. § 843

Requires Proof That the Aider and Abettor

Knew That the Person Being Aided Was

Required to Keep Certain Records by

Federal Lob k ccs ee es 18

III This Court Should Grant Certiorari

to Determine Whether the “Good Faith”

Defense Is Determined by an Objective

or Subjective Ramses. vise iccss sec va encss 20

IV This Court Should Grant Certiorari

to Determine Whether “‘Expert’’ Testimony

Was Proporiy Agi. «oo 6s bee sscos cc ekes sss 22

V_ This Court Should Grant Certiorari

to Determine Whether the Imposition of a

Prison Sentence in This Case Constitutes

Cruel and Unusual Punishment. ............. 25

Comciuaioe. .. os. cickcec vie ee eee 26

Appendix A -- Opinion of the United States

Court of Anneals ....3)3055 eee la

Appendix B -- Order of United States Court

of Appeals On Petition for Rehearing and

Suggestion for Rehearing Jn Banc ............. 18a

iii

Table of Authorities

Cases:

Dean v. Coughlin,

623 F. Supp. 392 (S.D.N.Y. 1985),

rev'd. on other grounds 4 i oe

eu cawecdcdacsecese 26

Delaware v. Fensterer,

nn. cs ace bccdbddsscviasce 25

Drope v. Missouri,

Eee es 16

Ford v. Wainwright,

en se . vaweceucacecs 16

George v. Morgan Construction Co.,

359 F. Supp. 253 (E.D.Pa. 1975) .............. 25

Pate v. Robinson,

I Se i 16

State v. Nix,

ee CD 2... a sevsanvanseewes 25

United States v. Moore,

ne cebanas 21, 22

United States v. Murphy,

108 F.R.D. 437 (E.D.N.Y. 1985) ............... 26

United States Constitution:

i a acceus 2

Neen su wan 2

ne waesewees 2, 26

statutes:

ee ME os. Sonos dcceaaodb ewes 19

I Sat oS. ganda banaeeaaet es 2,11

trai a vis op6nh cde aussasacmexoee 2,17

a acs ic add cane an Ceae as ay |

EE ise pace enncecsvacdas veneteuans 5, 11

i os sbevenshoatoansgheeeae 11

5... citasdbsaeeaarasdurtaaons 5, 18

nS... «ss hesud eed thangs eaewewan 5, 18

IEE <6 532s shsens akearvxwepeean 7, 18, 19

§ Ae | | SpE ere mr rete re 9,11

I oo dnkcoda bk ex al adnka ees i, 10, 11,18

I bic eccvne ss sneaciie: view saxnees 10, 11

, fas Ey: i ry arene eer 2

Other Authorities:

Federal Rules of Evidence

ESA RSPR ys, recast a 10, 25

New York Education Law § 6902(1) .......... 10, 21

Supreme Court Rules

eg ere mee 11

I oe aol are eae, has 11

IN THE

Supreme Court of the United States

October Term, 1986

VICTORIA VAMOS,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Opinions Below

The decision of the Court of Appeals is officially

reported at 797 F.2d 1146 (2d Cir. 1986), and is set forth

in Appendix A, pp. la-17a.

The decision of the Court of Appeals denying reargu-

ment or rehearing en banc is not officially reported, and

is set forth in Appendix B, pp. 18a-19a.

Jurisdiction

The judgment of the Court of Appeals was entered

on July 31, 1986. A timely petition for reargument, with a

suggestion for rehearing en banc, was denied on Sep-

tember 9, 1986. By order dated October 20, 1986 (per

Marshall, J.), petitioner's time to file this petition for a

writ of certiorari was extended to and including December

8, 1986.

The jurisdiction of the Court is invoked under 28

U.S.C. § 1254(1).

Constitutional Provisions and Statutes Involved

The Fifth Amendment to the Constitution of the

United States: “No person shall . . . be deprived of

life, liberty or property, without due process of law . .

The Sixth Amendment to the Constitution of the

United States: “In all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted

with the witnesses against him .. . and to have the

Assistance of Counsel for his defense.”

The Eighth Amendment to the Constitution of the

United States: “{Njor [shall] cruel and unusual

punishment [be] inflicted.”

18 U.S.C. § 2: “Whoever commits an offense against

the United States or aids, abets, counsels, com-

mands, induces or procures its commission, is

punishable as a principal.”

18 U.S.C. § 4241: “Determination of mental compe-

tency to stand trial.

(a) Motion to determine competency of

defendant.—At any time after the commencement

of a prosecution for an offense and prior to the

sentencing of the defendant, the defendant or the

attorney for the Government may file a motion for a

hearing to determine the mental competency of the

defendant. The court shall grant the motion, or

shall order such a hearing on its own motion, if

there is reasonable cause to believe that the de-

fendant may presently be suffering from a mental

disease or defect rendering him mentally incompe-

tent to the extent that he is unable to understand the

nature and consequences of the proceedings against

him or to assist properly in his defense.

(b) Psychiatric or psychological examina-

tion and report.—Prior to the date of the hearing,

the court may order that a psychiatric or psycho-

logical examination of the defendant be conducted,

and that a psychiatric or psychological report be

filed with the court, pursuant to the provisions of

section 4247(b) and (c).

pursuant to the provisions of section 4247(d).

(d) Determination and disposition.—If, after

the hearing, the court finds by a preponderance of

the evidence that the defendant is presently suffering

from a mental disease or defect rendering him

mentally incompetent to the exter.t he is unable to

understand the nature and consequences of the

proceedings against him or to assist properly in his

defense, the court shall commit the defendant to the

custody of the Attorney General.

> > >

(f) Admissibility of finding of competency.—

A finding by the court that the defendant is mentally

competent to stand trial shall not prejudice the

defendant in raising the issue of his insanity as a

defense to the offense charged, and shall not be

admissible as evidence in a trial for the offense

charged.”

. 18 U.S.C. § 4247: “General provisions for chapter.

> > >

A psychiatric or psychological report ordered pur-

suant to this chapter shall be prepared by the

examiner designated to conduct the psychiatric or

psychological examination, shall be filed with the

court with copies provided to the counsel for the

person examined and to the attorney for the Gov-

ernment, and shall include—

(1) the person’s history and present symptoms;

(2) a description of the psychiatric, psycho-

logical, and medical tests that were employed and

their results;

(3) the examiner's findings; and

(4) the examiner’s opinions as to diagnosis,

prognosis, and—

(A) if the examination is ordered under

section 4241, whether the person is suffering from a

mental disease or defect rendering him mentally

incompetent to the extent that »e is unable to

understand the nature and consequences of the

proceedings against him or to assist properly in his

defense;

(B) if the examination is ordered under

section 4242, whether the person was insane at the

time of the offense charged;

section 4243 or 4246, whether the person is suffering

from a :nental disease or defect as a result of which

his release would create a substantial risk of bodily

injury to another person or serious damage to

property of another;

(D) if the examination is ordered under

secticn 4244 or 4245, whether the person is suffering

from a mental disease or defect as a result of which

he is in need of custody for care or treatment in a

suitable facility; or

(E) if the examination is ordered as a part of

a presentence investigation, any recommendation

the examiner may have as to how the mental con-

dition of the defendant should affect the sentence.

(4) Hearing.—At a hearing ordered pursuant

to this chapter the person whose mental condition is

the subject of the hearing shall be represented by

counsel and, if he is financially unable to obtain

adequate representation, counsel shall be appointed

for him pursuant to section 3006A. The person shall

be afforded an opportunity to testify, to present

evidence, to subpoena witnesses on his behalf, and

to confront and cross-examine witnesses who appear

at the hearing.”

21 U.S.C. § 802: “Definitions

* +

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

dentist, veterinarian, scientific investigator, phar-

macy, hospital, or other person licensed, registered,

or otherwise permitted, by the United States or the

jurisdiction in which he practices or does research,

to distribute, dispense, conduct research with respect

to, administer, or use in teaching or chemical

analysis, a controlled substance in the course of

professional practice or research.”

21 U.S.C. § 822: “Persons required to register

Annual registration

(a) Every person who manufactures, distributes,

or dispenses any controlled substance or who pro-

poses to engage in the manufacture, distribution, or

dispensing of any controlled substance, shall obtain

annually a registration issued by the Attorney

General in accordance with the rules and regulations

promulgated by him.”

21 U.S.C. § 823: “Registration requirements

Distributors of controlled substances

in schedules III, IV, and V

(e) The Attorney General shall register an appli-

cant to distribute controlled substances in schedule

III, IV, or V, unless he determines that the issuance

of such registration is inconsistent with the public

interest.

* * *

ii i i

Research; pharmacies; research applications;

construction of Article 7 of Convention on

Psychotropic Substances

(f) Practitioners shall be registered to dispense

or conduct research with controlled substances in

schedule II, III, IV, or V if they are authorized to

dispense or conduct research under the law of the

State in which they practice. Separate registration

under this part for practitioners engaging in research

with nonnarcotic controlled substances in schedule

II, III, IV, or V, who are already registered under

this part in another capacity, shall not be required.

Pharmacies (as distinguished from pharmacists)

when engaged in commercial activities, shall be

registered tc dispense controlled substances in

schedule II, III, IV, or V if they are authorized to

dispense under the law of the State in which they

regularly conduct business. Registration applica-

tions by practitioners wishing to conduct research

with controlled substances in schedule I shall be

referred to the Secretary, who shall determine quali-

fications and competency of each practitioner re-

questing registration, as well as the merits of the

research protocol. The Secretary, in determining the

merits of each research protocol, shall consult with

the Attorney General as to effective procedures to

adequately safeguard against diversion of such con-

trolled substances from legitimate medical or scien-

tific use. Registration for the purpose of bona fide

research with controlled substances in schedule I by

a practitioner deemed qualified by the Secretary

may be denied by the Attorney General only on a

ground specified in section 824(a) of this title. Article

7 of the Convention on Psychotropic Substances

shall not be construed to prohibit, or impose addi-

tional restrictions upon, research involving drugs or

other substances scheduled under the Convention

which is conducted in conformity with this sub-

section and other applicable provisions of this

subchapter.”

10. 21 U.S.C. § 827: “Records and reports of registrants

Inventory

(a) Except as provided in subsection (c) of this

section—

(1) every registrant under this subchapter

shall, on May 1, 1971, or as soon thereafter as such

registrant first engages in the manufacture, distribu-

tion, or dispensing of controlled substances, and

every second year thereafter, make a complete and

accurate record of all stocks thereof on hand, except

that the regulations prescribed under this section

shall permit each such biennial inventory (following

the initial inventory required by this paragraph) to

be prepared on such registrant’s regular general

physical inventory date (if any) which is nearest to

and does not vary by more than six months from the

biennial date that would otherwise apply;

(2) on the effective date of each regulation of

the Attorney General controlling a substance that

immediately prior to such date was not a controlled

substance, each registrant under this subchapter

manufacturing, distributing, or dispensing such

substance shall make a complete and accurate record

of all stocks thereof on hand; and

(3) on and after May 1, 1971, every registrant

under this subchapter manufacturing, distributing,

or dispensing a controlled substance or substances

shall maintain, on a current basis, a complete and

accurate record of each such substance manufac-

tured, received, sold, delivered, or otherwise disposed

of by him, except that this paragraph shall not

require the maintenance of a perpetual inventory.

Availability of records

(b) Every inventory or other record required

under this section (1) shall be in accordance with,

and contain such relevant information as may be

required by, regulations of the Attorney General, (2)

shall (A) be maintained separately from all other

records of the registrant, or (B) alternatively, in the

case of nonnarcotic controlled substances, be in

such form that information required by the Attorney

General is readily retrievable from the ordinary

business records of the registrant, and (3) shall be

kept and be available, for at least two years, for

inspection and copying by officers or employees of

the United States authorized by the Attorney Gen-

eral.

Nonapplicability

not apply—

(1)(A) with respect to any narcotic controlled

substance in schedule II, III, IV, or V, to the pre-

scribing or administering of such substance by a

pratitioner in the lawful course of his professional

practice unless such substance was prescribed or

administered in the course of maintenance treat-

ment or detoxification treatment of an individual; or

(B) with respect to nonnarcotic controlled

substances in schedule II, III, IV, or V, to any

practitioner who dispenses such substances to his

patients, unless the practitioner is regularly engaged

in charging his patients, either separately or together

with charges for other professional services, for

substances so dispensed;

(2)(A) to the use of controlled substances, at

establishments registered under this subchapter

which keep records with respect to such substances,

in research conducted in conformity with an exemp-

tion granted under section 355(i) or 360b(j) of this

title;

(B) to the use of controlled substances, at

establishments registered under this subchapter

which keep records with respect to such substances,

in preclinical research or in teaching; or

11.

(3) to the extent of any exemption granted to

any person, with respect to all or part of such

provisions, by the Attorney General by or pursuant

to regulation on the basis of a finding that the

application of such provisions (or part thereof) to

such person is not necessary for carrying out the

purposes of this subchapter.

Nothing in the Convention on Psychotropic Sub-

stances shall be construed as superseding or other-

wise affecting the provisions of paragraph (1)(B),

(2), or (3) of this subsection.”

21 U.S.C. § 841: “Prohibited acts A

Unlawful acts

(a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or

intentionally—

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

possess with intent to manufacture, distribute, or

dispense, a controlled substance;

* * *

Penalties

(b) Except as otherwise provided in section 845

of this title, any person who violates subsection (a)

of this section shall be sentenced as follows:

ae a *

(B) In the case of... any controlled substance in

schedule III, such person shall, except as provided

in paragraphs (4), (5), and (6) of this subsection, be

sentenced to a term of imprisonment of not more

than 5 years, a fine of not more than $15,000, or

both. 7

* * *

(2) In the case of a controlled substance in

schedule IV, such person shall be sentenced to a

term of imprisonment of not more than 3 years, a

fine of not more than $10,000, or both.”

12.

13.

14.

15.

21 U.S.C. § 843: “Prohibited acts C

Unlawful acts

(a) It shall be unlawful for any person knowingly

or intentionally—

* * *

(4)(A) to furnish false or fraudulent material

information in, or omit any material information

from, any application, report, record, or other docu-

ment required to be made, kept, or filed under this

subchapter or subchapter II of this chapter. ©

* x

Penalties

sentenced to a term of imprisonment of not more

than 4 years, a fine of not more than $30,000, or

both.”

21 U.S.C.-§ 846: “Attempt and conspiracy

Any person who attempts or conspires to com-

mit any offense defined in this subchapter is punish-

able 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.”

Federal Rules of Evidence, Rule 702: “Testimony by

Experts

If scientific, technical or other specialized knowl-

edge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a

witness qualified as an expert in knowledge,

skill, experience, training, or education, may

testify thereto in the form of an opinion or

otherwise.”

New York State Education Law 8 6902: ‘Definition

of gst of nursing

. Anursing regimen shall be consistent with

= shall not vary any existing medical regi-

men.

ane Se

Statement of the Case!

Indictment SS 84 Cr. 629, filed in the United States

District Court for the Southern District of New York,

charged petitioner and others (Dr. Leo Laszlo Sugar,

Gloria Reinhardt and Nandor Retek) with (a) distributing

controlled substances outside the scope of medical prac-

tice (21 U.S.C. §§ 802(21), 812, 841(a)(1), and 841(b)(1)[B]),

(b) furnishing false information in documents required

to be maintained by federal narcotics law (21 U.S.C. §

843(a)(4)[A]), and (c) aiding and abetting, and conspiring

to commit, the foregoing offenses (18 U.S.C. § 2; 21

U.S.C. § 846). After a trial before the Hon. Shirley W.

Kram and a jury, petitioner was found guilty and she

was sentenced to six months in prison. Petitioner has

remained at liberty during the appellate proceedings.

Prior to the trial of this indictment, petitioner was

examined with regard to her competence to proceed, and

a hearing was had with regard thereto. It is petitioner’s

contention that that hearing was constitutionally and

statutorily defective because (a) the hearing court pre-

determined to find her competent regardless of the facts

elicited at the hearing, (b) petitioner was deprived of her

federal constitutional rights to the assistance of counsel

and to cross-examination, and (c) procedures mandated

by the statutes governing competency hearings were not

complied with. Despite the foregoing deficiencies, peti-

tioner contends that the record established that she was

suffering from paranoia, delusions, hallucinations and

suicidal tendencies which disabled her from understand-

ing the charges against her and assisting counsel in her

defense; accordingly, the hearing court finding that she

was competent to proceed was “manifestly erroneous.”

' Pursuant to Rule 19.1 and 19.2 of the Rules of this Court, counsel

for petitioner has requested that the Clerk of the Second Circuit Court

of Appeals certify and transmit to this Court (a) the trial transcript

and (b) the Appendix for Appellant filed in the Court of Appeals.

Between these papers, this Court will have all of the documents

necessary for an understanding of the issues posed by this case.

Furthermore, subsequent events before, during and

after the trial -- including two psychiatric diagnoses of

mental illness and incompetence to proceed -- mandated

further competency proceedings; the failure to hold such

further proceedings rendered petitioner’s trial and sen-

tence constitutionally invalid.

Turning to the trial, witnesses testified that petitioner

was a nurse in the office of Dr. Sugar, a physician

specializing in “bariatrics” or weight control; there was

also testimony from which the jury could have found

that certain controlled substances were improperly dis-

tributed from that office, that certain records were

falsified, and that petitioner was a party thereto. How-

ever, the indictment, as drawn, required proof that

petitioner knew that the medications were being dis-

tributed outside professional medical practice, and such

proof was lacking here; in particular, it was petitioner’s

contention that she had relied, in good faith, on Dr.

Sugar’s instructions and that that reliance was a com-

plete defense to the unlawful distribution charges. In a

related matter, petitioner also contended that the trial

court erred in refusing to instruct the jury that petitioner’s

“good faith reliance” defense was based on petitioner’s

subjective belief, rather than an objective, “reasonable

man” standard.

As for the falsification of records charges, the

indictment as drawn required proof that petitioner knew

both that Dr. Sugar was a “registrant” required to keep

certain records as well as the precise nature of those

records; however, both the evidence adduced at the trial

and the trial court’s instructions on these essential

elements were inadequate.

Seeking to remedy the above deficiencies in proof,

respondent secured the admission of “expert’”’ testimony

on the issues of the right of a nurse to rely on the

instructions of a physician and the records required to be

kept by federal law. However, neither of the witnesses

who gave this testimony was qualified to give expert

testimony thereon, and the admission of this testimony

deprived appellant of a fair trial.

Last of all, petitioner’s lack of competence and

related emotional problems rendered the imposition of a

prison sentence cruel and unusual punishment.

REASONS FOR GRANTING THE WRIT

This Court Should Grant Certiorari to Determine

Whether Petitioner Was Properly Found Compe-

tent to Proceed.

On the day that the trial of this case was supposed to

commence, a hearing to determine petitioner’s compe-

tence was held instead.

Petitioner’s counsel advised the court that he had

been unable to discuss the case with petitioner for the

preceding three months because of her deteriorating

mental condition and that she was “totally beyond

reason at this point’; he concluded “I can’t defend her”

(A. 39-40).2 Counsel then requested that the hearing

court listen to several other attornevs who were moving

to be substituted as trial counsel, but the court refused to

do so (A. 41).

Dr. Steven Simring, a psychiatrist who had examined

petitioner for an hour the previous evening, testified that

petitioner had told him stories of threats by law enforce-

ment officials; these included claims that New York City

police officers had broken into her apartment and

threatened her and that the prosecuting attorney had

hired a “headhunter” to cut off her “scalp.” The doctor

also testified that petitioner had told him that she was in

“contact” with the “spirits” of “the dead,” and that these

spirits were causing all her troubles (A. 62, 68, 69).

Dr. Simring concluded that the allegations of official

harassment were “highly unlikely and .. . certainly

ha[ve] a delusional flavor,”’ while petitioner’s claims of

’ Numerical references preceded by “A” are to the Appendix for

Appellant which was utilized in the Court of Appeals; as noted

previously, counsel has requested that a copy of this Appendix be

transmitted to this Court.

contact with “spirits” were “beyond the border of cultural

beliefs and indicates some kind of psychopathology.”

Because of the brevity of his examination, he was unable

to render a diagnosis, but did opine that petitioner could

be suffering from a “psychiatric difficulty which leads

her to exaggerate anxiety and to perceive identities that

are delusional” (A. 70). He also stated that if petitioner

went off on “tangents” when counsel tried to discuss her

case with her, as she had during the psychiatric exam-

ination, that would have prevented counsel from effect-

ively assisting her (A. 76-79).

The hearing court refused to allow the doctor to

testify whether further examinations would be “indicated

or beneficial,’ and the doctor stated his belief that

petitioner was competent (A. 70, 74-75). The court then

directed that the trial begin that afternoon (A. 80).

Instead, that afternoon, petitioner entered a plea of

guilty to portions of the indictment (A. 83-99). However,

shortly thereafter, she retained new counsel who moved

to set the plea aside (A. 100-113). In support of the

motion, counsel included a report by another psychia-

trist (Dr. Alvin Yapalater) who had interviewed petitioner

on several occasions.’ During these visits, the doctor

found that petitioner was “extremely disturbed, . . . very

agitated, spoke rapidly and almost incoherently ... ”;

she was “markedly depressed,” had “suicidal thoughts

and urges to the extent that I considered psychiatric

hospitalization .... Her emotions were . . . inappropriate.

She cried and laughed at odd times”; he felt she “mani-

fested an acute paranoia .. . [and] the bulk of her

perceptions about what was happening were beyond

credibility . . . [and] without foundations in reality ....I

regarded much of what she said as paranoid delusions

as well as visual and auditory hallucinations” (A.

110-111).

' The Court of Appeals’ opinion incorrectly referred to “a single

interview.” 797 F.2d at 1150.

Dr. Yapalater concluded as follows:

I have come to the conclusion, with a reasonable

degree of psychiatric certainty, that Mrs. Vamos

is suffering from a mental illness known as

paranoid psychosis with strong depressive fea-

tures and suicidal tendencies. It appears that her

psychotic break with reality began to develop

after her indictment... . It is my opinion that she

was not mentally capable on the court date of

April 16, 1985 [when she pled guilty] nor, probably

for a number of months before that, nor was she

competent to adequately confer with her attorney

(A. 111) (emphasis added).

The court set aside petitioner’s plea; however, the

court did not order further examinations to determine

petitioner’s competence to proceed but merely ordered

the case again to trial (A. 114-120).

After petitioner was found guilty, additional evidence

of incompetence was brought to the attention of the trial

court.

The pre-sentence report noted that petitioner had

been seeing a psychiatrist in 1982, that she returned to

that psychiatrist after her indictment in 1984 because of

“anxiety, depression and acute panic . . . [and] suicidal

thoughts,” that between April 1985 (when she pled guilty

and a first pre-sentence report was prepared) and Novem-

ber 1985 (when the second report was prepared), her

continued “stress” had taken a “physical toll” and she

had “visibly aged’’; the report concluded that petitioner’s

“emotional state appears less than healthy . . . [and sJhe

apparently would benefit from professional counseling.’”*

Petitioner was also seen by another psychiatrist; he

noted the repeated claims of harassment as well as

petitioner’s inappropriate affect, and he concluded:

‘ Petitioner’s counsel echoed these conclusions of combined

psychological and physical deterioration (A. 251-252).

Mrs. Vamos is suffering from a serious psychiatric

disorder, viz. MAJOR DEPRESSION. This is

characterized by pervasive, severe depression,

anxiety, insomnia and paranoid ideation. This

psychiatric condition is most likely related to the

severe stress and pressure following her arrest on

the instant offense. There has also been .. .

psychological decompensation (A. 286).

Despite the foregoing, the lower court proceeded

without further examination and imposed a prison

sentence (A. 318-330).°

This Court has repeatedly ruled that it is a violation

of due process to try and/or sentence one who is

incompetent, and that procedures must be adequate to

protect against such a violation. See, e.g., Ford v.

Wainwright, 106 S.Ct. 2595 (1986); Drope v. Missouri, 420

U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966).

Petitioner contends that the proceedings below are in

clear violation of these holdings.

In the first place, the hearing court pre-judged the

issue of petitioner's competence and determined to find

her competent regardless of what the evidence showed.

This is established by the following: the court repeatedly

stated prior to the hearing that petitioner was competent

and the case was going to proceed to trial (A. 40-41); the

court refused to allow petitioner's new counsel to address

the court during the hearing (A. 41); she refused to allow

cross-examination or testimony on the critical issue of

whether further psychiatric examination was called for

(A. 74-75); she allowed the hearing to proceed despite the

fact that a written report of the prior psychiatric exam-

ination had not been furnished to counsel as required by

statute (A. 41); and she never actually made any post-

hearing findings, especially a finding that petitioner

was competent, although such a finding is also required

by statute (A. 79-80).

* Petitioner's incarceration has been stayed by the Court of

Appeals.

nm lm

Secondly, the hearing itself was woefully deficient.

Although 18 U.S.C. § 4247(c)(1)-(4)(e) describes the re-

quired contents of the written report of any psychiatric

examination and directs that a copy be furnished to

counsel, the hearing court allowed Dr. Simring to give

unsworn oral testimony which contained no diagnosis of

petitioner's mental state. Although § 4247(d) explicitly

gave petitioner the right to the effective assistance of

counsel at the competency hearing, the lower court

deprived petitioner of that right by refusing to hear

counsel. Although the same statute guaranteed petitioner

the right to cross-examination, the lower court denied

that right to petitioner by refusing to allow counsel to

ask Dr. Simring whether further psychiatric examina-

tions would be “indicated or beneficial.” Last of all,

although § 4241(d) and (f) refer to “findings” that an

accused is competent or incompetent, the court never

made either such finding after the hearing was con-

cluded.

Chapter 13 of Title 18 of the United States Code

(which contains §§ 4241 and 4247) is a relatively new

statute and has not been the subject of much, if any,

discussion by this Court. This case presents this Court

with a host of opportunities to interpret and apply that

statute, as well as to explain how prior decisions of this

Court are affected by it and affect it.

In the third place, and passing beyond the compe-

tence hearing, the overwhelming evidence is that peti-

tioner was not competent to proceed or, at the least, that

there was a sufficient issue of her competence to require

further proceedings.

Prior to the hearing, petitioner’s then-counsel stated

without contradiction that he had been unable to confer

with her for more than three months. The psychiatrist

who examined her for the government testified that she

told him a bizarre story of police break-ins and pursuit

by a “head hunter’; he specifically refused to render a

diagnosis because his examination had been too brief. A

subsequent psychiatrist, who examined petitioner on

several occasions, repeated her bizarre tales and con-

cluded she was incompetent because she was suffering

from “paranoid psychosis.” The probation department

noted her continued physical and mental deterioration,

as did her new counsel. And a third psychiatrist con-

firmed that petitioner was mentally ill from “major

depression.”

The foregoing established that from the commence-

ment of the criminal proceedings against petitioner her

physical and mental condition began deteriorating and

at some point in those proceedings (but no later than the

beginning of the trial) her condition was such that she

was unable to rationally understand the proceedings

against her or communicate with counsel in preparing a

defense. The contrary decisions of the lower courts must

be set aside because they conflict with the previously

cited decisions of this Court.

This Court Should Grant Certiorari to Determine

Whether Proof of Aiding and Abetting a Violation

of the Record-Keeping Obligation Under 21 U.S.C.

§ 843 Requires Proof That the Aider and Abettor

Knew That the Person Being Aided Was Required

to Keep Certain Records by Federal Law.

21 U.S.C. § 843(a)(4(A) mandates the keeping of

certain records under federal law. The issue presented by

this case is whether one may be proven to have aided

and abetted a violation of that statute without proof that

one knew the person being aided was a “registrant” and

without proof that one knew that certain records were

required to be kept by federal law.

21 U.S.C. §§ 822, 823 and 827 denominated a arr

cian such as Dr. Sugar a “registrant” who was required

to both register and keep certain records pursuant to

federal law; § 843 made a violation of those statutes a

crime. While the records of the pharmaceutical houses

that sent supplies to Dr. Sugar apparently listed him as

a “registrant,” there is no proof that petitioner knew

this. Since only certain persons had to register, and since

this did not include all physicians, there is simply no

basis for presuming that petitioner knew Dr. Sugar was

a registrant.

Furthermore, there was no proof that petitioner

knew what records were required to be kept by federal

law. None of the witnesses testified to this element of the

crime. And since not every physician is required to keep

federal records (21 U.S.C. § 827(c)(1)[B]), and since what

records are required by federal law is a highly technical

matter (21 C.F.R. § 1304.01-41), petitioner’s knowledge of

these matters may not be presumed.

The Court of Appeals seemed to agree with peti-

tioner’s general contention that knowledge of the federal

registration and record-keeping requirements had to be

proven; the Court then held that the trial court had so

charged and that the proof had so established (797 F.2d

at 1154).

Contrary to the Court of Appeals’ holding, however,

the trial court did not charge the jury that petitioner had

to be aware of the federal registration and record-keeping

violations. Rather, the trial court merely charged that

Dr. Laszlo had to be found to be a registrant and that he

was required to keep certain records (A. 170-172, 180-

181). Although the trial court charged that petitioner

had to commit her acts “knowingly and intentionally”

(ibid.), this was merely to prevent a conviction based on

mistake, not an instruction that petitioner had to know

of the federal registration and record-keeping require-

ments.

Even assuming the adequacy of the instructions,

there was no proof of petitioner’s knowledge. Evidence

that the false record-keeping occurred after a visit from a

State investigator (797 F.2d at 1154) was irrelevant to

petitioner’s knowledge of federal registration and record-

keeping requirements, particularly since the State in-

vestigator explicitly testified that he had told petitioner

nothing of federal law (Trial Transcript -- hereafter “T.”

- 76-77).

In sum, the jury was not charged, and even if

charged could not have found, that petitioner had to

know of the federal registration and record-keeping

procedures.

Ill

This Court Should Grant Certiorari to Determine

Whether the “Good Faith’”’ Defense Is Determined

by an Objective or Subjective Standard.

Throughout the trial, petitioner raised the defense of

“good faith,” i.e., that she actually and honestly relied

on the propriety of Dr. Sugar’s orders concerning the

dispensation of medication and, accordingly, that she

had no wrongful intent. In accordance with this defense,

the trial court proposed to instruct the jury that if they

found that petitioner relied on Dr. Sugar’s instructions,

it should find her not guilty (T. 851). However, during a

pre-charge conference, and over the strenuous and

repeated objections of defense counsel, the court adopted

the prosecutor’s suggestions and inserted a requirement

of “reasonableness” (T. 851-852).

Accordingly, when the jury was charged on this

critical matter it was told:

Therefore, if you find that the defendant reason-

ably relied on the doctor’s good faith in dispensing

the controlled substance, you must find her not

guilty.

* * *

If you find, however, that the doctor was behaving

in bad faith, and that the defendant knew or

reasonably should have known this, you must

find her guilty of the crime charged (A. 167).

The Court of Appeais first held that a physician

cannot defend against a charge of unlawful distribution

of narcotics on the ground that he was actually acting in

good faith, if that claim was based on his following his

own practice even though that was not an accepted

course of treatment. 797 F.2d at 1151-3. That is, of course,

the thrust of the holding of this Court in United States v.

Moore, 423 U.S. 122 (1975). And that holding is unassail-

able since it follows from the fact that (a) all physicians

who dispense narcotics must register, (b) registrants

may only dispense such narcotics in the course of

legitimate medical practice, and (c) registrants who wish

to dispense narcotics outside such a practice, e.g., for

research and/or experimental purposes, must obtain

prior authorization. Under these circumstances, no

registrant could have a reasonable belief that his own

unauthorized distribution was within the law. Id. at

138-143.

The situation is completely different in the case of

petitioner. She was a nurse, not a physician, and was

therefore neither a registrant nor otherwise amenable to

the vast and intricate web of rules and regulations that

registrants must abide by in exchange for the privilege

of legally dispensing controlled substances. More to the

point, she was charged by New York State law to follow,

not question, a physician’s orders. See New York Educa-

tion Law § 6902(1) (‘A nursing regimen shall be con-

sistent with and shall not vary any existing medical

regimen’’).

Furthermore, under the facts of this case, the change

in the instructions was particularly harmful. While it

might be difficult, in the abstract, to conceive of an

unreasonable, yet good faith, reliance by a nurse on a

physician’s orders, the facts of this case present just

such a situation. Petitioner had worked for Dr. Sugar for

many years, beginning as a mere receptionist and then,

after going to nursing school at the doctor’s urging,

rising to become his office manager; he was also the

godfather to her two young children. The Court of

Appeals itself acknowledged that petitioner regarded Dr.

Sugar as “her father-figure and mentor as the result of

their close relationship over the years’ (797 F.2d at

1153). Under the facts of this case, it was certainly

possible for petitioner to have had a good faith, i.e.,

actual and honest, albeit unreasonable, belief in the

propriety of Dr. Sugar’s orders.

The Court of Appeals decided that some non-regis-

trants, such as nurses, would be held to the same

standards of care as physicians (ibid.). Such an extension

of this Court’s holding in Moore is without any support

in any decided case; if it is to be made, it should be done

only by this Court.

This Court Should Grant Certiorari to Determine

Whether “‘Expert’’ Testimony Was Properly

Admitted.

Among the more critical issues the jury in this case

had to resolve were the adequacy of the record-keeping

procedures, particularly as they related to whether a

“good faith medical practice” was being conducted, and

whether petitioner was entitled to rely on a physician’s

directions with regard to dispensing medication to

patients. While it is conceded that these matters could

probably have been the subject of expert testimony, it is

petitioner’s contention that the two persons called to

give that testimony in this case were wholly unqualified

to do so, and that the receipt of their testimony deprived

her of a fair trial.

Dr. John Morgan was called as an expert in

“pharmacology,” which he defined as “the science that

studies the interaction between chemicals and biological

tissue, and in a clinical sense pharmacology also encom-

passes the .. . characterization and understanding of

drugs that are given to people for the treatmeni of

illness” (T. 286). However, the doctor conceded that

pharmacology was an “academic science” and that while

he had written and taught, he had never practiced

medicine “privately,” i.e., “in the ordinary sense a doctor

practices medicine” (T. 288, 355). Accordingly, while

defense counsel accepted the witness as an expert in

pharmacology, he objected to him testifying about

“record-keeping procedures” because that was outside

his area of expertise; these objections were overruled (T.

310, 323).

-_"

The doctor was, therefore, permitted to testify both

as to what constituted “proper” record-keeping pro-

cedures and that the records in the office were not

properly kept, and to state that this was a “significant”’

factor in reaching the conclusion that a “good faith

medical practice” was not being conducted (T. 310, 312,

323, 378).®

The last witness proposed to be called by the

prosecution was Pamela Culbert. When defense counsel

asked for an offer of proof as to the relevance of her

testimony, the prosecutor asserted she would testify that

she taught nursing courses, that nurses were “required

to learn” that they could not always rely on the instruc-

tions of doctors, that this would show that petitioner was

on notice “from whatever source” that she could not

always rely on a physician’s instructions, and that this

was relevant to petitioner’s “good faith reliance on

physician” defense. Defense counsel responded that Miss

Culbert could not testify that petitioner had been so

taught;’ accordingly, he objected to her testimony, but

the objection was overruled (T. 617-618).

Miss Culbert testified that she was a professor !n the

School of Nursing at Pace University and she taught a

course in “women’s health assessment,” i.e., “the

anatomy and physiology of the female reproductive

system, and how one goes about explaining it, and what

the common maladies of the female reproductive system

are.” She also gave a lecture on post-licensing “certifi-

cation;” however, she conceded that registered nurses,

such as petitioner, only had to be licensed and did not

have to be certified (T. 619-621, 632, 634). She conceded

that she had never worked as a nurse in the office of a

physician who dealt primarily with obesity, and she did

not even know what the term “bariatrics’” meant (T.

630).

6 The testimony of Dr. Morgan on record-keeping was devoid of

any references to federal requirements.

? Miss Culbert taught at Pace University (T. 620); petitioner had

attended St. Francis College (A. 249).

She admitted that she had never testified as an

expert (T. 633).

Based on the foregoing, defense counsel renewed

and repeated his objection to the witness testifying “in

any sense as an expert,” but the objections were over-

ruled (T. 621-622, 624, 627, 629).

Accordingly, the witness was permitted to testify, in

essence, that if a nurse disagreed with a doctor’s order

she should not comply with it, that petitioner had not

participated sufficiently in keeping patient records, and

that from her review of the records a “good faith medical

practice” was not being conducted (T. 624-629).

After the witness finished testifying, counsel renewed

his objection to her testifying “purportedly [as] an

expert.” As counsel put it:

She showed a woeful ignorance . . . for someone

who purportedly is an expert .. . and her expertise,

what there was, was in different areas of nursing

... woman’s anatomy and other health problems.

* * *

It is like calling a criminal lawyer and asking him

to testify as to the intricacies of international law

(T. 656-657).

The prosecutor asserted that the witness was “clearly

expert” on “procedures that nurses had to follow in...

providing drugs to patients,” and the court denied defense

counsel’s motion to strike her testimony (T. 656-658).

Petitioner contends that neither of the foregoing

witnesses was an “expert” in the specialized area to

which they testified. Although Dr. Morgan was an expert

in pharmacology, he conceded that he had no experience

in the record-keeping procedures of a day-to-day bari-

atrics practice; similarly, although Miss Culbert may

have been an expert in some aspect of nursing, she also

had no expertise re: daily record-keeping procedures.

Furthermore, Culbert’s teaching of courses on “women’s

health assessment” and post-licensing “certification”

did not qualify her as an expert on whether nurses were

obliged not to follow certain orders of physicians.

It must be kept in mind that a demonstration of

expertise in one area does not qualify one as an expert in

a narrower or more specialized area. See, e.g., George v.

Morgan Construction Co., 359 F. Supp. 253, 259 (E.D.Pa.

1975) (“An expert must show special knowledge of the

very question upon which he is to express an opinion’’).

In the context of this case, this means that an expert in

the field of medicine or nursing was not qualified to

testify to sub-specialties within that field. See, e.g., State

v. Nix, 327 So.2d 301, 345 (La. 1976) (expert in field of

medicine not qualified as expert in radiology).

In Delaware v. Fensterer, 106 S.Ct. 292 (1985) this

Court examined the admissibility of expert testimony in

the context of the confrontation clause. This case pre-

sents the opportunity for examination of such testimony

within the context of Rule 702 of the Federal Rules of

Evidence. Certiorari should be granted to determine if

this testimony fell within this Rule.®

This Court Should Grant Certiorari to Determine

Whether the Imposition of a Prison Sentence in

This Case Constitutes Cruel and Unusual Punish-

ment.

It was and is petitioner’s contention that she was

incompetent to be sentenced. Assuming, arguendo, that

she was competent, it was nevertheless conceded that

she had serious physical, emotional and psychological

problems; in particular, the probation department noted

her continued physical and mental deterioration, and

suggested counseling, and a psychiatrist stated that

“incarceration would be devastating and destructive for

* The Court of Appeals’ entire discussion of this issue consisted of

the bare observation that “The trial judge acted well within her

discretion in admitting the testimony of medical experts. Fed. R.

Evid. 702.” 797 F.2d 1154.

Ms. Vamos.” Even the trial court noted that petitioner

was “depressed” and that the proceedings against her

had been “very traumatic” (A. 330).9

In view of the foregoing, and taking into account the

reprehensible conditions and facilities in women’s pri- |

sons (see, e.g., Dean v. Coughlin, 623 F. Supp. 392

(S.D.N.Y. 1985), rev’d. on other grounds ft

(2d Cir. 1986); United States v. Murphy, 108 F.R.D. 437

[E.D.N.Y. 1985]), this Court should consider whether the

imposition of a prison term constitutes cruel and unusual

punishment under the Eighth Amendment. See, e.g., |

United States v. Murphy, supra (house arrest ordered for

defendant “where incarceration would ‘destroy’ her’’).

Conclusion

For the above-stated reasons, certiorari should be

granted and the judgment of the Court of Appeals

reversed.

Respectfully submitted,

JOEL A. BRENNER

Attorney for Petitioner

76 Tompkins Street

East Northport, NY 11731

(516) 757-9189

Dated: December 1, 1986

9 At the time of the original sentence, petitioner had two young

children, aged 4 and 6, and the same psychiatrist who examined her

examined them and concluded that her incarceration would be

“devastating and destruction for .. . her children.” Since that time,

petitioner has given birth to another child who is only a few months

old at this time.

APPENDICES

SS. Se

Appendix A

Opinion of the United States Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1314—August Term 1985

Argued: May 23, 1986 _ Decided: July 31, 1986

Docket No. 85-1476

UNITED STATES OF AMERICA,

Appellee,

—against—

VICTORIA VAMOS,

Defendant-Appellant.

Before:

MANSFIELD, OAKES and MESKILL,

Circuit Judges.

Appeal from a judgment of the Southern District of

New York, Shirley W. Kram, Judge, convicting appellant

of aiding and abetting the distribution of controlled

substances outside the scope of medical practice, 21

U.S.C. §§ 812 and 841, furnishing false information in

Appendix A

Opinion of the United States Court of Appeals

documents which federal narcotics laws require to be

maintained, 21 U.S.C. § 843, and of conspiracy to com-

mit the above offenses, 21 U.S.C. § 846.

Affirmed.

aol

JOEL A. BRENNER, East Northport, NY, for

Appellant.

BRUCE A. GREEN, Assistant U.S. Attorney,

New York, NY (Rudolph W. Giuliani,

U.S. Attorney for the Southern District

of New York, David S. Hammer, Assis-

tant U.S. Attorney, New York, NY, of

counsel), for Appellee.

MANSFIELD, Circuit Judge:

Defendant Victoria Vamos appeals from a judgment

entered in the Southern District of New York after a jury

trial before Judge Shirley W. Kram. The jury found

Vamos guilty of 13 counts of aiding and abetting the

distribution of controlled substances outside the scope of

professional medical practice, 21 U.S.C. §§ 812 and 841,

five counts of furnishing false information in records

which the federal narcotics laws require to be maintained,

21 U.S.C. § 843, and one count of conspiracy to commit

the foregoing offenses, 21 U.S.C. § 846. We affirm.

In the late 1970’s and early 1980’s Victoria Vamos was

the nurse and office manager in the office of Dr. Leo

Appendix A

Opinion of the United States Court of Appeals

Laszlo Sugar. During the period Dr. Sugar, a New York

City physician in private practice, specialized in “baria-

trics”, or weight control. Dr. Sugar prescribed, and his

staff dispensed, large quantities of controlled drugs, spe-

cifically, phendimetrazine and phentermine, stimulants

which are used as diet pills. Dr. Sugar also provided

controlled barbituate sleeping pills to his patients. These

drugs are “Schedule III” substances, which have “cur-

rently accepted medical use[s] in treatment in the United

States” but are susceptible to abuse which “may lead to

moderate or low physical dependence or high psychologi-

cal dependence”. 21 U.S.C. § 812(b)(3). Dr. Sugar and his

staff sold amounts of these drugs far in excess of medi-

cally acceptable dosages to virtually anyone who sought

to make purchases.

Until 1978 Vamos, who served as Dr. Sugar’s nurse and

office manager and eventually became a registered nurse

in 1982, dispensed the drugs to patients who returned to

the office for additional pills subsequent to their first

visit. As Dr. Sugar’s practice grew, the task of dispensing

pills was assigned to Gloria Reinhart, an assistant in the

office. Reinhart testified that on the first few occasions

when a patient visited Dr. Sugar’s office, the approval of

Dr. Sugar or Vamos was required before pills were sold.

On subsequent visits, Reinhart was given carte blanche to

sell as many pills as the patient desired.

In June 1981, investigators for the New York State

Bureau of Controlled Substances visited the office to

conduct a biennial “diversion audit”, to determine

whether the amount of controlled substances ordered by

Dr. Sugar since 1979 matched the amount properly dis-

pensed in the course of Dr. Sugar’s practice. In conduct-

ing this audit the investigators discovered that the office

Appendix A

Opinion of the United States Court of Appeals

maintained inadequate records concerning the dispensing

of the controlled drugs. The records omitted such essen-

tial information as names of patients to whom the sub-

stances were sold, quantities of substances dispensed and

the relevant dates. The investigators informed Dr. Sugar )

and Vamos that the records were deficient and that )

another audit would be conducted. |

Following the departure of the investigators, Vamos

directed the staff to create false records accounting for

the drugs distributed between 1979 and 1981. Assuming

that a proper dosage would be one vial of diet pills per

week and that over the two years 104 vials could properly

be dispensed to a single patient, Vamos calculated the

number of patients necessary to make the quantity of

drugs dispensed appear proper. Inevitably, the number of

patients required for this purpose exceeded the number

actually treated by Dr. Sugar. Vamos and the staff solved

this problem by adding to the patients’ records notations

Stating that pills had been dispensed to patients who had

not received the controlled drugs. They also created

records for friends and relatives who never in fact visited

the office. The records stated that every patient, real or

fictitious, visited the office every week of the two-year

period and received one vial of pills each visit. To com-

plete the records, false medical information such as

weights and blood pressures were added to each card.

Lastly, the group “aged” the records by pouring dirt and

Stepping on them. During the period of these activities

and continuing into 1983 Vamos continued to distribute

controlled drugs to Dr. Sugar’s patients as in the past.

ND ee ee

The case was assigned to Judge Kram on September 20,

1984 and trial was scheduled to begin on April 16, 1985.

On the afternoon of April 15, the court ordered a psychi-

a ny Os

Appendix A

Opinion of the United States Court of Appeals

atric examination of Dr. Sugar to determine his compe-

tency. Although neither the court nor counsel noted that

Vamos’ behavior was in any way unusual, Vamos ex-

pressed a desire to talk with a psychiatrist to discuss

“personal stresses”, and the court directed that an exami-

nation of her also be conducted that evening.

The next morning, Vamos’ counsel told the court that

“she is totally beyond reason” and unable to assist in the

preparation of her defense. Dr. Steven Simring, who had

examined both defendants the previous evening, then

testified to having serious doubts about Dr. Sugar’s com-

petency to stand trial. With regard to Vamos, however,

the psychiatrist concluded that she “has an excellent

factual and rational understanding of the charges against

her, has an excellent understanding of the legal proceed-

ings, and. . . is eminently capable of cooperating with

counsel in the preparation of her defense”. Simring also

testified that Vamos made claims having “a delusional

flavor” to the effect that police and the U.S. Attorney

threatened her and her children with bodily harm and

invasion of her home. He concluded that Vamos “may

have some psychiatric difficulty which leads her to exag-

gerate anxiety and to perceive identities which are delu-

sional” but that these problems did not affect her

competency to stand trial. The court found Vamos com-

petent to stand trial and denied counsel’s application for

a further psychiatric examination.

On April 16, following the coiloquy concerning compe-

tency, Vamos entered a guilty plea which was accepted by

the court. On June 26, represented by new counsel,

Vamos moved to withdraw the plea on the grounds that it

was coerced by her counsel at the time and, alternatively,

that she was incompetent to plead guilty. Vamos’ motion

Appendix A

Opinion of the United States Court of Appeals

was supported by a psychiatric evaluation by Dr. Alvin

Yapalater, which stated that she suffered from “paranoid

psychosis with strong depressive features and suicidal

tendencies”. Although the psychiatrist concluded “she

was not mentally competent” on the date the plea was

entered, he did not draw any reasoned connection be-

tween his diagnosis and Vamos’ ability to understand the

nature of the proceedings or to confer with counsel. The

government did not oppose the motion and Judge Kram

vacated the plea without adopting either of the positions

urged by Vamos.

A 16-day jury trial was held in September and October

1985. During the course of trial, the issue of competency

was not raised by either counsel or the court. At trial

Vamos offered two defenses. First, she contended that she

was ignwrant of the massive quantities of drugs that had

been purveyed. To support this contention, she presented

witnesses suggesting that two members of the staff, both

of whom had testified for the government, actually dis-

pensed the drugs clandestinely and pocketed the proceeds.

Second, Vamos’ counsel argued that Dr. Sugar served as a

mentor and father-figure to her and, to the extent that she

was aware of the occurrences in the office, she trusted Dr.

Sugar’s professional judgment that the treatments were

medically proper.

Vamos was convicted on 19 of 30 counts. Vamos’

counsel submitted a sentencing memorandum which in-

cluded a report by Dr. Robert Goldstein, a psychiatrist

who examined Vamos on November 30, 1985. Dr. Gold-

stein concluded Vamos suffered from “a serious psychiat-

ric disorder, viz MAJOR DEPRESSION.” Although he

indicated “incarceration would be devastating and de-

structive for Ms. Vamos and her children”, his report did

Appendix A

Opinion of the United States Court of Appeals

not touch on the issue of competency to stand trial. The

court sentenced Vamos to a term of one year’s incarcera-

tion, six months of which was suspended, and a five-year

probationary period.

DISCUSSION

Competency

“It has long been accepted that a person whose mental

condition is such that he lacks the capacity to understand

the nature and object of the proceedings against him, to

consult with counsel, and to assist in preparing his de-

fense may not be subjected to a trial.” Drope v. Missouri,

420 U.S. 162, 171 (1975). Accordingly, 18 U.S.C. § 4241

provides that at any time prior to sentencing the district

court upon its own motion, or that of the defense or

prosecution, shall order a hearing to determine the mental

competency of the accused “if there is reasonable cause to

believe that the defendant may presently be suffering

from a mental disease or defect rendering him mentally

incompetent to the extent that he is unable to understand

the nature and consequences of the proceedings against

him or to assist properly in his defense.” Determination

of whether there is “reasonable cause” to believe a defen-

dant may be incompetent rests in the discretion of the

district court. United States v. Oliver, 626 F.2d 254, 258

(2d Cir. 1980); Newfield v. United States, 565 F.2d 203,

206 (2d Cir. 1977).

Vamos contends that the district court abused its discre-

tion by not ordering a competency hearing in compliance

with the procedural requirements of 18 U.S.C. § 4247(d).

She maintains that the conclusions of Dr. Yapalater and

Dr. Goldstein obligated the court to undertake further

inquiry of her competence.

Appendix A

Opinion of the United States Court of Appeals

The question of competency to stand trial is limited to

the defendant’s abilities at the time of trial, United States

v. Makris, 483 F.2d 1082, 1091 (Sth Cir. 1973), cert.

denied, 415 U.S. 914 (1974), and failure to conduct a full

competency hearing is not a ground for reversal when the

defendant appears competent during trial. United States

v. Dunn, 594 F.2d 1367, 1372 (10th Cir), cert. denied, 444

U.S. 852 (1979). Accordingly, deference is owed to the

district court’s determinations based on observation of

the defendant during the proceedings. See Oliver, supra,

626 F.2d at 258-59; United States v. Vowteras, 500 F.2d

_— 1210, 1212 (2d Cir.), cert. denied, 419 U.S. 1069 (1974).

During the course of the 16-day trial the court did not

observe any unusual behavior by the defendant in the

courtroom which would provide a basis for doubting

Vamos’ competence.

Additionally, since incompetency involves an inability

to assist in the preparation of a defense or rationally to

comprehend the nature of the proceedings, failure by trial

counsel to indicate the presence of such difficulties pro-

vides substantial evidence of the defendant’s competence.

Here counsel neither moved for a competency hearing

pursuant to § 4241 nor indicated to the court at the time

of trial any grounds for doubting the defendant’s compe-

tence. Indeed, Vamos’ ability to assist in her own defense

was apparent. For instance, a witness called by the

defense testified that Vamos communicated with her and

asked her to appear in court on Vamos’ behalf. This

evidence of competence dispelled any doubt created by

the report of Dr. Yapalater, which was based on a single

interview approximately four months before trial.

The report of Dr. Goldstein submitted to the court as

part of defendant’s sentencing memorandum indicated

me a A ee te a

Appendix A

Opinion of the United States Court of Appeals

that Vamos was suffering from depression but did not

address issues bearing on ability to confer with counsel

and to assist in the preparation of a defense. Dr. Gold-

stein offered no opinion as to Vamos’ competence. It is

well-established that some degree of mental illness cannot

be equated with incompetence to stand trial. Hall v.

United States, 410 F.2d 653, 658 (4th Cir.), cert. denied,

396 U.S. 970 (1969). Since Dr. Goldstein’s report did not

link Vamos’ illness to her competency to stand trial, and

the observations of the court and Vamos’ counsel did not

provide such a connection, the report did not give rise to

reasonable cause to doubt Vamos’ competency to do so.

Because Vamos’ conduct did not provide a reasonable

basis for doubting her competence to stand trial and, to

the contrary, indicated that she was an active participant

in preparing her case, we reject the contentions that the

district court abused its discretion in considering Vamos

competent to stand triai or that the court was compelled

to conduct a full inquiry into Vamos’ competence. United

States v. Zovluck, 448 F.2d 339 (2d Cir. 1971).

Jury Instruction

Before examining the language of the district court’s

instruction challenged by Vamos a brief review of govern-

ing principles is essential. The Controlled Substance Act,

21 U.S.C. §§ 801, et seq. (“CSA”) states that “except as

authorized by this subchapter, it shall be unlawful for any

person knowingly or intentionally . . . to distribute, or

dispense a controlled substance”. 21 U.S.C. § 841(a)(1).

Absent an exemption or qualification, this law would

make it a crime for a doctor or nurse in the course of

their professional practice to distribute or dispense a

controlled substance to a patient unless it were “done

10a

Appendix A

Opinion of the United States Court of Appeals

because of mistake, or accident or other innocent rea-

son.” United States v. Marvin, 687 F.2d 1221, 1227 (8th

Cir. 1982), cert. denied, 460 U.S. 1081 (1983). There is no

evidence in the present case that Vamos did not act

“knowingly and intentionally” in distributing controlled

drugs to various persons; indeed, the trial court instructed

the jury that the government was required to prove “that

defendant knew what she was doing and that she was not

acting out of mistake or carelessness”.

In order to enable physicians and certain others (e.g.,

manufacturers) lawfully to distribute or dispense drugs

within the course of their professional practice Congress

provided that “Persons registered . . . under this sub-

chapter. . . are authorized [to dispense controlled sub-

stances]. . . to the extent authorized by their registration

and in conformity with the other provisions of this

subchapter.” 21 U.S.C. § 822(b). Such registration is

mandatory if the registrant is authorized to dispense

drugs under the law of the state where he or she practices.

The Attorney General, acting under authority granted by

the CSA, 21 U.S.C. § 821, promulgated regulations pro-

viding that controlled drugs may be prescribed “for a

legitimate medical purpose by an individual practitioner

acting in the usual course of his professional practice”. 21

C.F.R. § 1306.04 (1986). The term “practitioner” is de-

fined by the CSA as a “physician, . . . hospital or other

person licensed, registered, or otherwise permitted, by the

United States or the jurisdiction in which he practices

. . to distribute, dispense . . . a controlled substance in

the course of professional practice”. 21 U.S.C. § 802(20).

The term “professional practice” refers to generally ac-

cepted medical practice; a practitioner is not free deliber-

ately to disregard prevailing standards of treatment.

te Sree eon vente é

bles aR lee WR i i

Seinen: Leaner: eNitnh ln kaetbi >

lla

ne Appendix A

Opinion of the United States Court of Appeals

United States v. Norris, 780 F.2d 1207, 1209 (Sth Cir.

1986). In short, the doctor must act in the good faith

belief that his distribution of the controlled substance is

for a legitimate medical purpose and in accordance with

the usual course of generally accepted medical practice.

In United States v. Moore, 423 U.S. 122, 138-39 (1975),

the Court quoted and implicitly approved a jury instruc-

tion explaining that a physician could be convicted if the

jury found that he knowingly distributed controlled drugs

“other than in good faith for detoxification in the usual

course of a professional practice and in accordance with a

standard of medical practice generally recognized and

accepted in the United States.” /d. at 138-39.

Thus the CSA establishes an enforcement scheme to

regulate the legitimate distribution of controlled sub-

stances and to halt illegal distribution. H.R. Rep. 91-

1444, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code

Cong. & Ad. News 4566, 4567. Various provisions of the

Act are designed to control procedures to be followed in

legitimate distribution, see, e.g., §§ 821-830, and a medi-

cal practitioner’s lack of compliance with these provisions

may be punishable criminally, 21 U.S.C. §§ 842, 843.'

Section 841(a), however, is clearly directed at halting.

distribution outside the scope of a legitimate chain of

possession. United States v. Moore, supra, 423 U.S. at

130. The Moore Court held that a physician has no

special license to divert the flow of drugs from legitimate

medical distribution to illicit commercial trade and that if

he does so he may be prosecuted under § 841(a) since he

l Accordingly, § 841(a) carries heavier penalties than either §§ 842 or

843, which punish “more or less technical violations”. H.R. Rep. No.

1444, U.S. Code Cong. & Ad. News at 4576. See United States v.

Green, 511 F.2d 1062, 1067 (7th Cir.), cert. denied, 423 U.S. 1031

(1975).

12a

Appendix A

Opinion of the United States Court of Appeals

then acts as a “drug pusher” rather than as a medical

professional. Moore, supra, 423 U.S. at 138.

The issue raised by Vamos with respect to the district

court’s jury charge in the present case is the standard by

which the belief of a person claiming to have distributed

controlled drugs for legitimate medical uses is to be

governed. The court instructed the jury:

“The final element the government must prove

beyond a reasonable doubt is that the defendant

dispensed the drugs, or caused them to be dispensed,

other than for a legitimate medical purpose and not

in the course of medical practice. .. .

* * * * *

“Furthermore, if a doctor dispenses drugs in good

faith in medically treating a patient, then the doctor

has dispensed the drug for a legitimate medical

purpose in the usual course of medical practice; that

is, he has dispensed the drug lawfully.

“Good faith in this context means good intentions

and the honest exercise of best professional judgment

as tO a patient’s needs. It means that the doctor acted

in accord with what he reasonably believed to be

proper medical practice.

“Therefore, if you find the defendant reasonably

relied on the doctor’s good faith in dispensing the

controlled substances, you must find her not guilty.

This is true, moreover even if you find that the

doctor was not, in fact, dispensing pills for proper

medical purposes, as /ong as her reliance on his good

faith was reasonable under the circumstances.

“If you find, however, that the doctor was behav-

ing in bad faith, and that the defendant, knew or

6 esate ne ai. any

i3a

Appendix A

Opinion of the United States Court of Appeals

reasonably should have known this, you must find

her guilty of the crime charge.” (Emphasis supplied).

Vamos argues that if the jury found that she relied on Dr.

Sugar’s good faith, she was entitled to a finding of not

guilty, whether or not her reliance was “reasonable”.~ We

disagree.

The exemption granted to medical practitioners

engaged in distribution of controlled substances is a

limited one. Because they have been licensed as practi-

tioners and registered under the CSA, they enjoy a

privilege not extended to the layman. That privilege,

based on the assumption that practitioners, by reason of

their expertise and training, will be guided by generally

accepted professional practice, carries with it greater

responsibilities than those chargeable to the unlicensed

person. These added responsibilities are essentia! to pro-

tect the public against abuse by “registrants, who have the

greatest access to controlled substances and therefore the

greatest Opportunity for diversion”, Moore, supra, 423

US. a 135,’

2 The government contends that Vamos failed to raise this objection

sufficiently below. The record, however, reveals that in reviewing the

court’s proposed charge Vamos’ counsel stated “I would oppose the

‘reasonable’ language [Assistant U.S. Attorney] Hammer added” and

requested that the phrase containing the word “reasonable” be

stricken. The prosecutor acknowledged at the time that counsel “dis-

agrees with the term reasonable”. When counsel raised the point again

after the charge was given to the jury, the court stated that it had ruled

on the issue. Although these objections are far from ideal, we find

them sufficient to meet the standard of Fed. R. Crim. P. 30. The

specificity of counsel’s objection combined with indications from both

the prosecutor and the court that they understood the claim, reveal

that the grounds of the objection were apparent to all involved.

3 In Moore the defendant admitted that at the time he prescribed

controlled drugs he knew he was deviating from generally accepted

medical principles. His defense was that he was employing an experi-

l4a

Appendix A

Opinion of the United States Court of Appeals

In view of the special responsibilities assumed by a

practitioner registered under the CSA we believe that,

although not mandated, an instruction that the jury

should use an objective standard of reasonableness in

deciding whether a practitioner acted in accord with what

he believed to be proper medical practice is not improper

and does not amount to error. Indeed it is difficult to

conceive of a situation, in such a carefully regulated field,

‘in which a registered practitioner would have an “unrea-

sonable” good faith belief that his distribution was for a

legitimate medical purpose and in accord with the usual

course of generally accepted medical practice. The sugges-

tion that an objective reasonableness standard exposes a

physician to criminal responsibility for nothing more than

the equivalent of malpractice ignores the fact that in a

criminal prosecution the physician may be found guilty

only upon proof beyond a reasonable doubt that he acted

outside the scope of medical practice, as distinguished

from the lesser burden assumed in a civil malpractice suit.

To 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. As the Supreme Court noted in Moore, “Congress

intended the CSA to strengthen rather than to weaken the

prior drug laws”. 423 U.S. at 139. Faced with a situation

similar to that presented here, the Fifth Circuit approved

an objective standard for determining what constitutes

accepted medical practice, stating, “[o]ne person’s treat-

ment methods do not alone constitute a medical prac-

mental treatment program. 423 U.S. at 126. As a result, the jury

charge stressed that a physician cannot deliberately ignore generally

accepted principles of medical practice.

Soe wearye ee 7

15a

Appendix A

Opinion of the United States Court of Appeals

tice.” United States v. Norris, supra, 780 F.2d at 1209.

The Sixth Circuit has likewise followed an objective

“reasonableness” standard, approving an instruction to

the effect that a physician’s good faith dispensation of a

controlled substance in the usual course of his profes-

sional practice “connotes an observance of conduct in

accordance with what the physician should reasonably

believe to be proper medical practice.” United States v.

Voorhies, 663 F.2d 30, 33-34 (6th Cir. 1981).

There remains the question of whether Vamos, who was

charged as a co-conspirator, unlawful distributor, and

aider and abettor of Dr. Sugar’s unlawful conduct, 18

U.S.C. § 2, should be judged by a subjective rather than

a reasonableness standard on the ground that she was not

the physician-registrant and she may have relied in good

faith on Dr. Sugar, whom she regarded as her father-

figure and mentor as the result of their close relationship

over the years. While those who assist practitioners in

distributing controlled drugs clearly cannot be held to the

standard of a reasonable practitioner, they are not free to

unreasonably rely on the judgment of their employers.

Such staff members may only distribute controlled drugs

by virtue of the same limited privilege that shields the

practitioners whom they assist. The jury in this case was

entitled to weigh the fact that a trained nurse such as

Vamos is expected to have a higher degree of awareness

than the average layman, yet a lower degree of knowledge

than a licensed physician. In short, we fail to find

anything unfair, improper or prejudicial about applica-

tion of an objective standard to her conduct as a nurse

and office manager. There was ample evidence from

which the jury could infer beyond a reasonable doubt that

she could not reasonably fail to know that Dr. Sugar was

l6a

Appendix A

Opinion of the United States Court of Appeals

engaged in unlawful activity aad that she intended to help

him do so, which is the test. See United States v. Mc-

Daniel, 545 F.2d 642, 644 (9th Cir. 1976).

Vamos’ further contention that the district court erred

in not charging the jury that she could be found guilty of

furnishing false and fraudulent material in records re-

quired to be made and kept under federal narcotics laws,

21 U.S.C. § 843, 18 U.S.C. § 2, only upon proof that she

knew of the federal registration and record-keeping re-

quirements needs little discussion. Judge Kram did in-

form the jury that physicians were required to maintain

records of controlled substances sold to patients and that

Vamos was charged with falsifying such records. The

instructions, when read as a whole, as they must be,

United States v. Whitten, 706 F.2d 1000, 1019 (9th Cir.

1983), cert. denied, 465 U.S. 1100 (1984), clearly convey

the message that Vamos could only be found guilty if she

knew that accurate patients’ records were required by law

to be kept.* But even if the court failed to so state in plain

language, the error would be harmless beyond a reason-

able doubt in view of the overwhelming evidence of

Vamos’ guilt of these charges. This evidence included

testimony by members of Dr. Sugar’s staff of Vamos’

decision to create a false record system after Investigator

Siegel of the New York State Bureau of Narcotics Control

advised her of the inadequacy of the office’s records.

Staff members testified about Vamos’ central role in the

fabrication of several hundred patients’ dispensing cards

containing false statements as to weights, blood pres-

4 Judge Kram, for instance, emphasized to the jury that the govern-

ment was required to prove that Vamos acted “knowingly or inten-

tionally” in falsifying the records and that she “knew what she was

doing, and was not acting out of mistake or carelessness”.

- ate —)

17a

Appendix A

Opinion of the United States Court of Appeals

sures, visits, amounts of drugs dispensed and her assign-

ment of Nador Retek to the job of “aging” these records

by pouring dirt on them and stamping them with his feet.

We have reviewed Vamos’ other claims of error and

find them to be without merit. The trial judge acted well

within her discretion in admitting the testimony of medi-

cal experts. Fed. R. Evid. 702. The statements of co-con-

spirators challenged as hearsay were properly admitted as

statements in furtherance of the conspiracy, the existence

of which was established by a fair preponderance of the

evidence. United States v. Paone, 782 F.2d 386, 390-91

(2d Cir. 1986). Vamos’ contention that imposition of any

prison sentence in this case would constitute cruel and

unusual punishment is plainly frivolous.

The conviction is affirmed.

18a

Appendix B

Order of United States Court of Appeals

On Petition for Rehearing and Suggestion for

Rehearing In Banc

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Courthouse, in the City of New: York, on

the ninin day of September, one thousand nine hundred

and eighty-six.

FILED: Septembeer 9, 1986

No. 85-1476

UNITED STATES OF AMERICA,

Appellee,

-against-

VICTORIA VAMOS,

Defendant-Appellant.

A petitioner for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the defendant-appellant, Victoria

Vamos,

Upon consideration by the panel that heard the

appeal, it is

Ordered that said petition for rehearing is DENIED.

19a

Appendix B

Order of United States Court of Appeals

On Petition for Rehearing and Suggestion for

Rehearing In Banc

It is further noted that the suggestion for rehearing

in banc has been transmitted to the judges of the court in

regular active service and to any other judge that heard

the appeal and that no such judge has requested that a

vote be taken thereon.

Elains B. Goldsmith,

Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.