U.S. v. Plesons

Citation560 F.2d 890
Decision Date08 August 1977
Docket NumberNo. 77-1132,77-1132
PartiesUNITED STATES of America, Appellee, v. John D. PLESONS, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Paul C. Hetterman, St. Louis, Mo., for appellant; Robert J. O'Hanlon and Lawrence J. Lee, St. Louis, Mo., on brief.

Richard E. Coughlin, Asst. U. S. Atty. (argued), and Barry A. Short, U. S. Atty., St. Louis, Mo., on brief for appellee.

Before LAY and ROSS, Circuit Judges, and MILLER, Judge. *

ROSS, Circuit Judge.

The appellant, a St. Louis physician, was convicted by a jury on eighteen counts of violating 21 U.S.C. § 841(a)(1) and one count of violating 21 U.S.C. § 846. Specifically, these convictions relate to the unlawful distribution, and a conspiracy to distribute, Dilaudid, Preludin, and Desoxyn, three Schedule II drugs. In general the scheme involved Dr. Plesons in writing narcotic prescriptions for nonmedical purposes for his coconspirators who then procured the drugs at a pharmacy. Sometimes the names of Dr. Plesons' legitimate patients were used on the prescriptions, though these patients testified at trial they received neither the prescriptions nor the pills.

Medical experts inferred, in answers to hypothetical questions, that prescriptions for narcotics which Dr. Plesons had given were not medically indicated, and were in fact excessive, for the relatively minor complaints the patients were alleged to have.

Dr. Plesons has not challenged the sufficiency of the evidence against him, but appeals his conviction on the basis of the district court's refusal to suppress at trial incriminating evidence obtained by the grand jury from him in the absence of an admonishment of his fifth and sixth amendment rights. 1 Secondly, appellant has alleged that the jury instruction should have, and did not, accurately convey to the jury that to convict they must find that Dr. Plesons prescribed drugs without a legitimate medical purpose and outside of an authorized, professional medical practice where his distribution of such drugs was lawful.

Having considered the two allegations Dr. Plesons makes in detail, we affirm the conviction.

I. The Self-Incrimination Claim

On September 15, 1976, the government subpoenaed Dr. Plesons to appear and testify before a grand jury on the following day. The subpoena was served by two government agents who gave Dr. Plesons a list of twenty patient names and told him to bring his records on these individuals with him the next day to the grand jury. Dr. Plesons appeared and testified at the proceedings, referring throughout his testimony to information and notations in the patient files. Dr. Plesons left with his records that day, but the records were demanded subsequently by a second subpoena dated October 4, 1976, which required their production for the grand jury. 2 It is apparently undisputed that at no time prior to his arrest did the government inform Dr. Plesons of his right to secure counsel or his right to refuse to incriminate himself, or that if he waived such right his voluntary testimony could be used as evidence against him.

Initially in his brief Dr. Plesons had claimed error in the failure of the trial court to suppress both incriminating grand jury testimony given without warnings and the incriminating medical records subpoenaed later. However at oral argument counsel for the appellant abandoned the claim concerning the grand jury testimony because of the limited use which had been made of it at trial. As the appellant apparently concedes limited use of the grand jury testimony at trial, we conclude that any error in failing to warn the appellant at that stage of the proceedings was, if error at all, a harmless one. See United States v. Donahey, 529 F.2d 831, 832 (5th Cir. 1976).

The primary claim of the appellant rests on the extensive use which the prosecution made of Dr. Plesons' medical records, which had been surrendered to the grand jury without an admonishment to Plesons by the government of his right to refuse to do so.

At an early date, the Supreme Court established that the fifth amendment's proscription that "(n)o person * * * shall be compelled in any criminal case to be a witness against himself" applied to one who appeared as a grand jury witness and was there asked incriminating questions.

The object (of the fifth amendment) was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.

Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892) (emphasis added). This conclusion continues to be reaffirmed: "(I)t is well settled that the Fifth Amendment privilege extends to grand jury proceedings, Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892) * * * ." United States v. Washington, supra, 431 U.S. at 186, 97 S.Ct. at 1818.

We conclude that the privilege against self-incrimination could have been exercised by Dr. Plesons when presented with the grand jury subpoena, had he elected to do so, if the medical records in question fell within the ambit of documents which the fifth amendment will protect. The Supreme Court observed at an early date that "we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms." Boyd v. United States, 116 U.S. 616, 633, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886). In spite of the Supreme Court's recent observation that Boyd, in some aspects, has been narrowed through the years, Fisher v. United States, 425 U.S. 391, 407, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), we feel the records here do come within the historic area of protection afforded by the fifth amendment to private documents. 3 In the Fisher case the Court discussed, in the context of the attorney-client privilege, the theory which it felt justified the protection of documents as compelled testimonial communications under the fifth amendment. It is, the Court says, "(t)he 'implicit authentication' rationale (which) appears to be the prevailing justification for the Fifth Amendment's application to documentary subpoenas." Fisher v. United States, supra, 425 U.S. at 412 n. 12, 96 S.Ct. at 1581. Here, unlike the Fisher case where the taxpayer could not authenticate his accountant's workpapers, the doctor prepared the records and could vouch for their accuracy; his compliance with the subpoena in this case acted as an assurance that the patient records produced were the ones demanded. Id. at 413, 96 S.Ct. 1569. Cf. United States v. Miller, 425 U.S. 435, 440, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). In Hill v. Philpott, 445 F.2d 144 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 533, 30 L.Ed.2d 542 (1971), it was "not refuted" that the physician's seized records which included, among many other types of records, "patient folders and their contents," were "generally considered privileged from disclosure by a taxpayer under the Fifth Amendment." Id. at 146. In Bellis v. United States, 417 U.S. 85, 87-88, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974), the Supreme Court clearly pronounced that "(t)he privilege applies to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual's private life."

Furthermore, the subpoenaed medical records were in the possession of Dr. Plesons and were turned over to authorities by him, a fact which avoids the issue which the Supreme Court has recently raised when private papers are out of the hands of one seeking to exercise the privilege. "In Couch v. United States (409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973)) we recently ruled that the Fifth Amendment rights of a taxpayer were not violated by the enforcement of a documentary summons directed to her accountant and requiring production of the taxpayer's own records in the possession of the accountant. We did so on the ground that in such a case 'the ingredient of personal compulsion against an accused is lacking.' " Fisher v. United States, supra, 425 U.S. at 397, 96 S.Ct. at 1574.

We know then of no reason why the fifth amendment's protection would not have extended to Dr. Plesons and his private medical papers had he chosen to refuse to produce them. The fact remains, however, that Dr. Plesons turned them over, that they incriminated him, and that the prosecuting attorney introduced them as evidence of the crimes for which he was convicted. At trial, the records were introduced in the government's case-in-chief. They were identified for admission into evidence by Drug Enforcement Agent Robert Jones who testified that the documents were the patient records seized by him from Dr. Plesons at his office pursuant to the October 4 subpoena. Counsel for Dr. Plesons then renewed his objection to the evidence which the court had earlier refused to suppress. The records proved to be incriminating. Statements read aloud in court from the files of patients concerning alleged health problems, for example, overweight, were contradicted when a patient took the stand and denied ever having received treatment for that problem or the Preludin diet pill prescriptions.

As Dr. Plesons was given no warnings by the government, the question avoided in United States v. Washington, supra, 431 U.S. at 190, 97 S.Ct. 1814, is presented, and we must consider whether the failure to warn Dr. Plesons and to secure an effective waiver of his rights should result in the suppression of the documents. We conclude in the circumstances of this case, it should not.

Much of the recent debate over warnings for grand jury witnesses centers on the...

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