560 F.2d 890 (8th Cir. 1977), 77-1132, United States v. Plesons

Docket Nº:77-1132.
Citation:560 F.2d 890
Party Name:UNITED STATES of America, Appellee, v. John D. PLESONS, Appellant.
Case Date:August 08, 1977
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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560 F.2d 890 (8th Cir. 1977)

UNITED STATES of America, Appellee,

v.

John D. PLESONS, Appellant.

No. 77-1132.

United States Court of Appeals, Eighth Circuit

August 8, 1977

Submitted June 14, 1977.

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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

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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

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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...

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