U.S. v. Kirk
Decision Date | 11 December 1978 |
Docket Number | No. 77-5325,77-5325 |
Citation | 584 F.2d 773 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Philip E. KIRK, M.D., Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Frank E. Haddad, Jr., Louisville, Ky., for defendant-appellant.
Albert Jones, U. S. Atty., James H. Barr, Louisville, Ky., John J. Loftus, Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Before KEITH and MERRITT, Circuit Judges, and CECIL, Senior Circuit Judge.
This is an appeal by Philip E. Kirk, appellant, from his conviction before a jury in the United States District Court for the Western District of Kentucky at Louisville on forty eight counts of an indictment charging him with violations under Sections 841(a)(1) and 846, Title 21, U.S.C. and Section 2, Title 18, U.S.C. The appellant was sentenced to five years imprisonment on each of the forty eight counts for which he was convicted, the sentences to be served concurrently with each other, and to pay a total fine of $30,000. The appellant was acquitted on counts forty nine to fifty three.
The appellant claims that there is not sufficient evidence in the record to support the charge of conspiracy in the first count of the indictment.
Count one of the indictment charged that, from on or about and before May 1, 1973, until the February 1, 1977 filing of the indictment, appellant conspired with Charlene White, an employee of appellant, and Robert Forrester, a dealer of preludin and other amphetamine drugs in Louisville, Kentucky, to commit the following offenses against the United States:
all in violation of Title 21, United States Code, Section 846.
According to the indictment, the conspiracy's object was to enable White, Forrester "and others to obtain controlled substances for personal use and further distribution." This object was allegedly accomplished through appellant's supplying written orders purporting to be prescriptions to White and Forrester "and others." These purported prescriptions, issued by virtue of appellant being a physician licensed to practice medicine in Kentucky with "purported medical offices" in Louisville, were allegedly "not prescriptions issued in the usual course of professional practice" and did not constitute "prescriptions of a practitioner" within the meaning of Title 21, United States Code, Section 829.
In furtherance of this conspiracy, the indictment alleged the following five overt acts:
Appellant argues that his conviction under count one of the indictment cannot stand since there was no proof of any unlawful agreement to violate the statutes at issue, no proof of any alleged overt act committed in furtherance of any unlawful agreement, and no proof of appellant's knowing participation in any unlawful agreement. The essence of appellant's argument is that the government failed to establish conspiratorial knowledge on the part of appellant or his participation therein.
In support of this argument, appellant points out that one of the alleged co-conspirators Robert Forrester, described in the indictment as "an illegal dealer of preludin and other amphetamine drugs," did not testify. In contrast, however, appellant notes that the other alleged co-conspirator, Charlene White, an employee of appellant, did testify, but testified that she did not enter into any conspiratorial agreement with appellant. Finally, with respect to appellant's argument of his lack of knowing participation in any unlawful agreement, appellant points out that he testified that he never entered into any such agreement to violate the law. While appellant concedes that certain witnesses testified they had obtained numerous prescriptions, even under assumed names, from the appellant, appellant contends that such evidence does not establish that he knowingly engaged in any conspiracy to violate the law.
Recognizing that "purely circumstantial evidence may be sufficient to sustain a conspiracy conviction" in this circuit, this Court defines "the totality of the evidence * * * substantial enough to support a finding of guilt beyond a reasonable doubt" as
U. S. v. Dennis Essington Green, supra, at 1266, citing U. S. v. Martin, 375 F.2d 956, 957 (6th Cir. 1967).
It is these evidentiary...
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State v. Young
...those prescriptions issued for a "legitimate purpose," have the same meaning and are used interchangeably. United States v. Kirk, 584 F.2d 773, 784 (6th Cir.), cert. denied, 439 U.S. 1048, 99 S.Ct. 726, 58 L.Ed.2d 708 (1978); United States v. Plesons, 560 F.2d 890, 897 n. 6 (8th Cir.), cert......
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U.S. v. Conatser
...is satisfied by proof that at least one of the alleged overt acts was committed by any one of the coconspirators. United States v. Kirk, 584 F.2d 773, 782 (6th Cir.1978). Here, any such requirement would have been satisfied by Marlowe's conviction on six of the seven substantive counts that......
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People v. Wright
...severe of the criticisms leveled at the instruction is that it is " 'at best clumsy and, if taken alone, confusing' ". United States v. Kirk, 584 F.2d 773 (CA 6, 1978), quoting United States v. Denton, 336 F.2d 785, 788 (CA 6, 1964). A more accurate characterization of the instruction is th......
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Brief for the petitioners: Gonzales v. State of Oregon *.
...was sufficient to allege that they fell "outside the boundaries of the registrant's professional practice"); United States v. Kirk, 584 F.2d 773, 784 (6th Cir.) ("[T]here is no difference in the meanings of the statutory phrase, 'In the usual course of professional practice' and the regulat......
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...See United States v. Rosenberg, 515 F.2d 190, 193 (9th Cir. 1975), cert. denied, 423 U.S. 1031 (1975); cf. United States v. Kirk, 584 F.2d 773, 784 (6th Cir. 1978), cert. denied, 439 U.S. 1048 (1978); United States v. Plesons, 560 F.2d 890, 897, n.6 (8th Cir. 1977), cert. denied, 434 U.S. 9......