U.S. v. Veal, 92-2145

Citation23 F.3d 985
Decision Date13 April 1994
Docket NumberNo. 92-2145,92-2145
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dennis VEAL, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Jonathan Tukel (argued and briefed), Office of the U.S. Atty., Detroit, MI, for plaintiff-appellee.

Herbert A. Jordan (briefed), Detroit, MI, Derrick A. Carter (argued), School of Law Library, Documents Dept., Valparaiso University, Valparaiso, IN, for defendant-appellant.

Before: NELSON and SILER, Circuit Judges; and WELLFORD, Senior Circuit Judge.

PER CURIAM.

The defendant, a registered pharmacist, was convicted on charges of violating 21 U.S.C. Sec. 841 by distributing controlled substances illegally and by possessing controlled substances with intent to distribute them illegally. He was also convicted on charges of violating 21 U.S.C. Sec. 827 by failing to maintain proper controlled substance records.

The defendant has appealed his conviction, contending, among other things, that the evidence was insufficient to sustain the charges against him. Finding none of the defendant's contentions persuasive, we shall affirm the conviction.

I.

In October of 1990 investigators from the United States Drug Enforcement Administration received reports from drug wholesalers that the defendant, Dennis Veal, was making inordinately large purchases of Doriden and Tylenol 4. Doriden, a sleeping medication, and Tylenol 4, a pain medication containing codeine, are Schedule III controlled substances.

These drugs have a heroin-like effect when ingested in combination. The combination is commonly referred to in the illegal drug market as "fours and doors." Although a registered pharmacist pays anywhere from four to seven cents per pill of either variety, a single dose of the "fours and doors" combination costs about $20 on the street.

On October 5, 1990, DEA investigators went to the defendant's pharmacy to serve him with a notice of intent to inspect his records, prescriptions, and inventory. The defendant agreed that the agents could perform the inspection four days later, at which time he said he would turn over his records. When the agents returned on October 9, the defendant asked them whether they would be removing the records. The officers answered that the records would be seized only if they were found to contain incriminating evidence. The defendant responded, "So you'll take my records." The officers reiterated that they would only take the records if they were incriminating, and the defendant made the same response. The defendant then withdrew his consent to the search, and the officers left the premises.

The officers subsequently obtained a search warrant pursuant to which they went through Mr. Veal's pharmacy records. They discovered significant discrepancies between his controlled substance purchases and the quantities that could be accounted for. The records also revealed that defendant Veal had filled numerous phony prescriptions for Doriden and Tylenol 4. Some of the prescriptions bore the name of a fictitious doctor, and others bore the names of actual doctors who testified at trial that they had not, in fact, written the prescriptions.

Mr. Veal was tried on a thirteen-count indictment, one count of which was eventually withdrawn by the government. The jury returned a verdict of guilty on six counts and not guilty on the remaining counts. A motion for acquittal or a new trial was denied, and this appeal followed.

II.
A. Sufficiency of Evidence

Mr. Veal contends that the evidence produced at trial was insufficient to support a conviction on any of the charges of which the jury found him guilty. The question to be answered in this regard is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

As a registered pharmacist, Mr. Veal was entitled to dispense controlled substances in the usual course of his professional practice. United States v. Hughes, 895 F.2d 1135, 1143 n. 11 (6th Cir.1990). To convict him on the drug distribution charges, therefore, the government was required to prove (a) that Mr. Veal filled prescriptions that were not issued for a legitimate medical purpose, and (b) that he did so knowing that the prescriptions were invalid. Id. To prove the requisite knowledge, the government was required to show, at a minimum, that the defendant deliberately closed his eyes to wrongdoing that should have been obvious to him. United States v. Seelig, 622 F.2d 207, 213 (6th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 206, 66 L.Ed.2d 89 (1980).

Mr. Veal did not dispute at trial that he had filled invalid prescriptions. He asserted, however, that he did not know they were invalid.

There was ample evidence to support a finding that the fraudulent character of the prescriptions should have been obvious to him. The government showed that several prescriptions were issued by a fictitious doctor, that several of the prescriptions were facially invalid, and that phone calls to the doctors named on the forged prescriptions would have uncovered the forgeries. Several experts testified about the well-known combination of "fours and doors" and stated that any reasonable pharmacist should have been suspicious of prescriptions calling for that combination. A pharmacist acting in good faith would have called to verify the prescriptions, according to the government's evidence, and Mr. Veal did not do so. The jury was not required to accept this evidence, of course, but it was entitled to do so.

Mr. Veal's reliance on United States v. Bycer, 593 F.2d 549 (3d Cir.1979), is misplaced. In Bycer the court held that a pharmacist who did not have exclusive access to controlled substances could not be convicted of illegal drug distribution charges based solely on possession of the substances and a discrepancy in the pharmacy's records. The government's evidence failed to prove that it was defendant Bycer, and not some other pharmacist, who had been responsible for the illegal distribution. In the instant case, by contrast, Mr. Veal admitted that it was he who filled the prescriptions in question; the evidence of impropriety is thus far stronger here than it was in the Bycer case.

The evidence against Mr. Veal was also sufficient to support the finding of guilt on the charges of inadequate recordkeeping. In order to convict Mr. Veal on these charges, the government was required to show only that the defendant had not kept a "complete and accurate record of each [controlled] substance manufactured, received, sold, delivered, or otherwise disposed of by him," as required by 21 U.S.C. Secs. 827(a)(3) and 843(a)(4)(A). The evidence introduced at trial included the results of an extensive audit that tended to show that the defendant had failed to account for significant quantities of the controlled substances he handled. Contrary to Mr. Veal's assertions, his conviction on the recordkeeping counts is not dependent on any improper conclusion that the discrepancies in his records resulted from illegal sales. The audit assumed the validity of all of the distributions documented by Mr. Veal, and it demonstrated that Mr. Veal had still failed to account for 951 Doriden tablets (9 percent of his total purchases of Doriden during the audit period), nearly 1600 Tylenol 4 tablets (19 percent of his total purchases of Tylenol 4 during the audit period), and 3,227 Tylenol 3 tablets (21 percent of his total Tylenol 3 purchases). The government was not required to prove that the missing tablets were dispensed illegally; what actually happened to those...

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