541 F.2d 300 (1st Cir. 1976), 75-1415, United States v. Hooker

Docket Nº:75-1415.
Citation:541 F.2d 300
Party Name:UNITED STATES of America, Appellee, v. John H. Perry HOOKER, Defendant-Appellant.
Case Date:September 07, 1976
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 300

541 F.2d 300 (1st Cir. 1976)

UNITED STATES of America, Appellee,


John H. Perry HOOKER, Defendant-Appellant.

No. 75-1415.

United States Court of Appeals, First Circuit

September 7, 1976

Argued June 3, 1976.

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Paul E. Kennedy, Boston, Mass., with whom John A. Burgess Associates, Ltd., Montpelier, Vt., were on brief, for defendant-appellant.

Charles E. Chase, Asst. U.S. Atty., Boston, Mass., with whom James N. Gabriel, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

After a jury trial appellant was convicted on a 29 count indictment charging him with distributing and conspiring to distribute prescriptions for controlled substances in violation of 21 U.S.C. §§ 841 and 846 (1970). 1 Appellant now challenges the sufficiency of the evidence and also claims that the prosecutor's comments on the evidence in his closing argument were prejudicial. Our analysis of these claims requires further

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examination of the factual circumstances of this case.

Appellant is a licensed physician who was engaged in the practice of psychiatry in the Beacon Hill section of Boston in 1973. His codefendant, Donahue, who was a graduate student in psychology, worked in his office as a receptionist. The government's case rested primarily on the testimony of five undercover agents of the Drug Enforcement Administration, four of whom had obtained prescriptions from appellant. Agent Doyle testified that on January 22, 1973, he went to appellant's office 2 and advised the receptionist that he wanted to see the doctor. Donahue gave him various forms 3 to be filled out. When Doyle asked why he had to complete the rather lengthy series of questions he was told that "the forms were to cover the doctor's ass," and "were protection against the police, to stop them from taking his license . . . (which) was like gold." After completing the forms Agent Doyle was directed to appellant's office. Upon inquiry as to the purpose of his visit Doyle stated that he wanted some "bombers" (a slang term for certain drugs). Doyle testified that appellant asked if he knew the pharmaceutical name for the drug. Doyle said that he did not but that he had been given the pills at a party and that they had enabled him to stay up all night. Appellant replied that Doyle was probably referring to "speed." The agent told the doctor that the friend who had given him the "bombers" had referred him to appellant's office. Doyle gave appellant the friend's name and the doctor called on the intercom for that individual's file, explaining that "by referring to the . . . file, he could find out the correct name of the drug. . . ." The receptionist then entered with a file and whispered to appellant who thereupon jumped up and told Doyle to "get out of the office" and not to return. Doyle testified that the doctor said that he had already been contacted by the "feds" and that "they told him that he was only supposed to dispense speed to people who wanted to lose weight." The agent left the office. On redirect Doyle also testified that appellant had asked no questions relating to the forms the agent had been requested to fill out.

Agent Girard went to appellant's office on February 5. He was also asked to fill out the forms, and upon completing this task met with the doctor. Girard testified that appellant asked him what he wanted and that he answered "some pills." Appellant inquired why Girard sought the pills and was told "they ma(k)e me feel good." The doctor then "asked . . . what kind of pills . . ., and . . . mentioned a couple of examples (such as) demerol and desbutal." Girard expressed a preference for the latter. Appellant asked if Girard knew what desbutal looked like. The doctor picked up a book, showed Girard a page with "several colored pictures of different kinds of capsules and pills," and asked "if any of them looked familiar." Girard pointed out a black capsule, and said that he previously had tried one, had liked its effect and would be happy with more. Appellant advised Girard that the capsule in question was biphetamine, that state laws were very strict concerning the dispensing of "speed", and that biphetamine was usually prescribed for weight control. Appellant took Girard's picture for the files and then began writing a prescription. While writing the doctor asked Girard whether he had a problem with his weight. He replied "You name it and I've got it." The agent was given the prescription and paid appellant ten dollars. He testified that the doctor did not weigh him. Girard returned on March 6 and told appellant that he had "no problems" but "just wanted more pills." The doctor said "okay," took

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out a prescription pad and began writing. The doctor gave Girard a prescription and the agent paid him ten dollars.

On April 9, 1973, Girard again went to appellant's office. The doctor asked what he desired and Girard said that he wanted both "ups" and "downs" this time. Girard testified that appellant said he would write a prescription for desbutal and that for "downs" he could have either seconal, tuinal, nembutol, or quaalude. Girard stated he did not want the latter because several friends had overdosed on it. Appellant then gave the agent two prescriptions, one for seconal and the other for desbutal. Girard asked appellant if he had received the fifteen dollars he had paid the receptionist and the doctor responded affirmatively.

On April 11 Girard returned and informed the receptionist that he was unable to have the desbutal prescription filled 4 and that he would therefore like a prescription for either desoxyn or dexedrine. Donahue took the desbutal prescription into the doctor's office and returned in a few minutes with one for desoxyn which he gave to the agent. On May 15 Girard came to appellant's office in the company of Agent Barton. Appellant asked Girard what he wanted "that day" and he said that "more of the same would be fine." The doctor checked Girard's folder and again wrote out two prescriptions for desoxyn and seconal. He paid ten dollars and asked if appellant would see his "friend" (Barton). The doctor inquired as to how long Girard had known the friend; the agent said six months, and appellant agreed to see...

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