584 F.2d 773 (6th Cir. 1978), 77-5325, United States v. Kirk

Docket Nº:77-5325.
Citation:584 F.2d 773
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Philip E. KIRK, M.D., Defendant-Appellant.
Case Date:September 22, 1978
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 773

584 F.2d 773 (6th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Philip E. KIRK, M.D., Defendant-Appellant.

No. 77-5325.

United States Court of Appeals, Sixth Circuit

September 22, 1978

Argued April 12, 1978.

Rehearing and Rehearing En Banc Denied Oct. 20, 1978.

Certiorari Denied Dec. 11, 1978.

See 99 S.Ct. 726.

Page 774

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.

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:

"1. To unlawfully and knowingly cause others to possess with intent to distribute controlled substances, in violation of Title 21, United States Code, Section 841(a)(1),

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and Title 21(sic), United States Code, Section 2;

"2. To unlawfully and knowingly distribute and cause to be distributed controlled substances, in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2;"

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:

"1. On or about January 5, 1976, in the Western District of Kentucky, the defendant, PHILIP E. KIRK, M.D., prepared a written order, purporting to be a prescription for desoxyn, a controlled substance, at the request of Reverend Father Patrick Delahanty, using the pseudonym of 'Leighton T. Creuse', and the said PHILIP E. KIRK, M.D., well knowing at the time said written order was prepared that the said Father Delahanty had no legitimate medical need for desoxyn.

"2. On or about January 9, 1976, in the Western District of Kentucky, the defendant, PHILIP E. KIRK, M.D., prepared a written order purporting to be a prescription for desoxyn, a controlled substance, at the request of Reverend Father Patrick Delahanty, using the pseudonym of 'John R. Wilson', and the said PHILIP E. KIRK, M.D., well knowing at the time said written order was prepared that the said Father Delahanty had no legitimate medical need for desoxyn.

"3. From on or about May 1, 1973, to on or about January 1, 1976, in the Western District of Kentucky, PHILIP E. KIRK, M.D., sold one Charles B. Clark written orders purporting to be prescriptions for desoxyn (Methamphetamine), preludin (phenmetrazine hydrochloride) and other amphetamine substances.

"4. From on or about July, 1975, to on or about February 29, 1976, in the Western District of Kentucky, PHILIP E. KIRK, M.D., sold to one Robert Sheffield approximately three hundred (300) preludin (phenmetrazine hydrochloride) tablets.

"5. From on or about July 1, 1973, to on or about February 1, 1976, in the Western District of Kentucky, the defendant, PHILIP E. KIRK, M.D., sold to one Robert Forrester and his associates, their true names being unknown but using the names of 'Deborah Bryant', 'Ronald Rademacher', 'Steve Forrester', 'Michael Valuski', 'Bradley Bose', 'Floyd Keeton', and others to this Grand Jury unknown, written orders purporting to be prescriptions for an unknown quantity of preludin (phenmetrazine hydrochloride), desoxyn (Metamphetamine) (sic) and other amphetamine and amphetamine-like drugs unknown to this Grand Jury, and that these drugs were not used for their legitimate medical purpose, but were sold illegally in the Louisville, Kentucky, area."

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,

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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.

As stated recently by this Court, in United States v. Thompson, 533 F.2d 1006, at 1009 (6th Cir. 1976),

"The essential elements of conspiracy are:

"1. The conspiracy described in the indictment was willfully formed, and was existing at or about the time alleged;

"2. The accused willfully became a member of the conspiracy;

"3. One of the conspirators thereafter knowingly committed at least one of the overt acts charged in the indictment, at or about the time and place alleged; and

"4. Such overt act was knowingly done in furtherance of some object or purpose of the conspiracy, as charged."

In United States v. Dennis Essington Green, 548 F.2d 1261, at 1266 (6th Cir. 1977), it was stated that

"This court has long recognized that purely circumstantial evidence may be sufficient to sustain a conspiracy conviction."

Moreover, according to Dennis Essington Green, supra,

"The permissible inferences to be drawn from such (circumstantial) evidence need not be consonant only with an hypothesis of guilt, U. S. v. Luxenberg, 374 F.2d 241, 249 (6th Cir. 1967), providing that the totality of the evidence is substantial enough to support a finding of guilt beyond reasonable doubt."

See also United States v. Van Hee, 531 F.2d 352, at 358 (6th Cir. 1976), which declared that

" * * * the established rule of this circuit is that a finding of guilt may be based on circumstantial evidence which does not 'remove every reasonable hypothesis except that of guilt.' "

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

" * * * more than a scintilla. It means such relevant evidence as a reasonable mind might accept to support a conclusion. It is evidence affording a substantial basis of fact from which the fact in issue can be reasonably inferred." U. S. v. Dennis Essington Green, supra, at 1266, citing U. S. v. Martin, 375 F.2d 956, 957 (6th Cir. 1967).

The rationale of the rule that circumstantial evidence may amount to such substantial evidence to sustain a conspiracy conviction is that

"Inferential proof may be controlling where the offense charged is so inherently secretive in nature as to permit the marshalling of only circumstantial evidence. This is the norm in drug conspiracy prosecutions * * * " U. S. v. Dennis Essington Green, supra, at 1266 (Emphasis supplied)

In addition to the guidelines set out above, with respect to reviewing a conviction for conspiratorial activity, mention must be made of this Court's recognition that, as stated in U. S. v. Dennis Essington Green, supra, at 1266,

"Once there has been a conviction in a criminal case, appellate courts are bound to view the totality of the evidence in the light most favorable to the Government. (Citations omitted). Concomitantly, all reasonable inferences must be drawn which are consistent with the verdict. U.

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S. v. Scales, 464 F.2d 371, 373 (6th Cir. 1972)."

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