U.S. v. Hooker
| Decision Date | 07 September 1976 |
| Docket Number | No. 75-1415,75-1415 |
| Citation | 541 F.2d 300 |
| Parties | UNITED STATES of America, Appellee, v. John H. Perry HOOKER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
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.
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 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 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 him. Barton went in, was told that he would have to fill out some forms, and that he should return on May 21.
He went to the office on that date, completed the forms and asked appellant for "some pills." When the doctor inquired as to what kind, Barton replied: "tuinal or seconal." Appellant asked why he wanted them and advised that some people take pills to get "high," but that was not a valid medical reason. Barton stated that he did not care why the doctor gave him the pills. He testified that he told appellant that he did not want to lie, and that he probably would take them to get "high." Appellant replied that he would not give the pills for him to get high but would provide them for use in getting to sleep. Barton stated that the doctor then said: "I guess you can have some Tuies." Barton was given a prescription for tuinal and paid the doctor ten dollars.
Agent Girard returned to the doctor's office on June 21 and was again given prescriptions for desoxyn and seconal. Agent Barton returned to appellant's office on June 27 seeking more pills. He testified that during this meeting he asked appellant if it "would make him mad if I told him I was going to take them to get high," and that appellant said "No, it wouldn't make him mad, but that wasn't a legitimate medical reason for writing the prescription, (and) that he would write . . . a prescription for sleep." Barton received a prescription for tuinal for which he paid ten dollars. Agent Girard returned on July 31 in the company of Agent Gamble. After briefly reviewing Girard's file the doctor wrote out the usual two prescriptions for desoxyn and seconal. Girard paid him ten dollars and asked if he would see Gamble who was in the waiting room. Appellant said he was booked until Labor Day, but after Girard persisted the doctor gave him a set of forms for Gamble to complete. Gamble filled in the forms, and was asked by appellant what he wanted. The agent asked for "ups" and "downs," and when queried as to the purpose replied that he enjoyed taking them. Appellant stated that this was not a valid medical reason; Gamble answered that he understood, but that he "liked the feeling (he) got from them." Appellant then asked what Gamble had in mind, and was told desoxyn and seconal. The doctor wrote out a prescription for each of these types of pills. Gamble paid the requested ten dollars. On August 7, 1973, Barton returned accompanied by Agent Yout. Barton did not have an appointment and the receptionist informed him it would cost an extra five dollars. The agent agreed, and then met with appellant. The doctor asked if Barton wanted some more tuinal. The agent responded affirmatively and added that he also wanted some "uppers." Barton testified that appellant then explained that "there were three available Desbutal, Desoxyn, and Dexedrine," and that the first had a barbituate, the second "had a pretty hard kick," and that the third was "somewhere in the middle." The agent told the doctor he did not want too hard a "kick" and asked for dexedrine. Appellant wrote a prescription for this drug and for tuinal. Barton paid appellant fifteen dollars. Yout also met with the doctor and told him he wanted "some pills to make me feel good and high." Yout testified that appellant then said "the kids usually wanted Desoxyn, Desbutal, or Dexedrine, and that those drugs are very popular on the streets." Yout requested and received a prescription for dexedrine. Appellant refunded five of the twenty dollars previously paid to the receptionist, and also took a snapshot of Yout for his files.
On September 6 Agent Girard visited appellant's office and observed the doctor talking with an unknown...
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