Doe, In re, 1579

• Decision Date: 29 June 1983
• Docket Number: No. 1579,D,1579
• Parties: 13 Fed. R. Evid. Serv. 1202 In re Dr. John DOE, M.D., A Witness Before the January 1982 Additional Grand Jury. Dr. John DOE, M.D., Appellant, v. UNITED STATES of America, Appellee. ocket 83-6111.
• Court: U.S. Court of Appeals — Second Circuit

Page 1187

711 F.2d 1187

13 Fed. R. Evid. Serv. 1202

In re Dr. John DOE, M.D., A Witness Before the January 1982 Additional Grand Jury Dr. John DOE, M.D., Appellant, v. UNITED STATES of America, Appellee.

No. 1579, Docket 83-6111.

United States Court of Appeals Second Circuit.

Argued June 13, 1983.

Decided June 29, 1983.

David F. Axelrod, New York City (Peter L. Zimroth, Kostelanetz & Ritholz, New York City, of counsel), for appellant.

Philip Le B. Douglas, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Roanne L. Mann, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before FRIENDLY, KEARSE and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

We are called upon to decide whether a grand jury has the power to subpoena a physician's W-2 forms, prescription forms and patient files despite his claims that the Fifth Amendment and doctor-patient privilege shield these records from production. A grand jury sitting in the Southern District of New York is investigating what it believes to be a sham medical clinic that served as a front for the illegal sale of tens of thousands of "quaaludes" in New York City. The records subpoenaed are those of a psychiatrist allegedly associated with the clinic. The Court is unanimous in its view that the doctor's W-2 and prescription forms are subject to the subpoenas duces tecum issued against him and that for his failure to produce them he was properly held in civil contempt. We are divided only on the issue of patient files in the doctor's possession.

BACKGROUND

In 1981 the Drug Enforcement Administration (DEA) commenced an investigation of Jorum Associates, Inc. and a number of individuals associated with Jorum, including Dr. Doe. Concluding that it had unearthed sufficient evidence of narcotics violations to establish probable cause, the DEA applied for and obtained a warrant in May 1982 to search Jorum's East 34th Street premises.

As the record reveals, the government furnished evidence that Jorum and those associated with it were engaged in large-scale illegal distribution of quaaludes to both consumers and street dealers. The government's proof describes the following operation. Jorum hired doctors who were paid on the basis of days worked. Dr. Doe, for example, worked one day per week from late 1981 until early 1982. For each of the eight days Dr. Doe worked he was paid $3,000 by Jorum. The medical specialties represented at the clinic were extraordinarily diverse, including acupuncture, surgery, osteopathy, gynecology and, in Dr. Doe's case, psychiatry. Those who came to Jorum, and they came daily by the score, were given a perfunctory physical by a medical assistant and a brief interview with one of the doctors. Over 90% of the individuals who visited Jorum obtained quaalude prescriptions for 30 to 60 tablets each. All that was required of a patient to obtain such a prescription was a claimed sleeping difficulty, denial of drug abuse, and cash payment of a $150 to $200 fee. Dr. Doe saw over 590 patients--an average of more than 70 per day--while associated with Jorum.

That this assembly-line technique for prescribing drugs had little or nothing to do with the practice of medicine is tellingly revealed in the affidavit of an undercover DEA agent who came to Jorum and saw Dr. Doe on December 3, 1981 and again two weeks later. On each visit the agent adopted a different identity and name without changing his appearance, drawing no comment from anyone. On both occasions the agent received a prescription from Dr. Doe for 45 quaaludes after paying a $200 fee.

With this sort of evidence before it, the grand jury issued subpoenas duces tecum directing appellant to produce his patient files, financial records and Schedule II prescription forms. ¹ The issuance of these subpoenas prompted a battle of ex parte filings by Doe and the government seeking in camera review by United States District Judge Stewart. On December 13, 1982, after reviewing the open and in camera submissions of the parties, the district court concluded that the "required records" exception to the Fifth Amendment overcame appellant's objection to compelled production of his Schedule II prescription and W-2 forms and patient files. The trial court later held that no psychotherapist-patient privilege should apply in this case and ordered production of the subpoenaed patient files in their original, unredacted condition. When Dr. Doe declined to comply, he was held in civil contempt and this appeal followed.

DISCUSSION

I

In assessing whether appellant may rely on a Fifth Amendment privilege not to comply with the subpoenas duces tecum, it is first necessary to determine whether the act of producing the documents described in the subpoenas would involve compelled, testimonial self-incrimination on Doe's part. See Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); In re Katz, 623 F.2d 122, 125-26 (2d Cir.1980). In relevant portion the subpoenas seek

(1) All patient files relating to persons purportedly treated by [Doe] on the premises of Jorum Associates ... [and its successor entities] ... in the period August 1981--June 1982;

(2) ... IRS Form[s] W-2, relating to [Doe's] compensation by Jorum Associates, Inc. [and its successor entities];

(3) All Schedule II prescription forms reflecting drugs prescribed by [Doe] at [Jorum's and its successors' premises].

[ (4) ] All patient files relating to persons purportedly treated for sleep and stress problems in the period March-June 1982;

[and (5) ] All Schedule II prescription forms reflecting drugs prescribed in the period March-June 1982.

Because Jorum and its successor entities are alleged by the government not to be sleep disorder clinics but actually fronts for the illegal distribution of controlled substances, any admission on appellant's part that he is associated or connected with these organizations could be self-incriminating. Thus, even appellant's mere production of items 1, 2 and 3, apart from their content, might involve his incriminating admission that these documents exist and that he was in some way connected with Jorum.

Moreover, since items 1 and 4 consist of an inordinate number of files considering the time periods involved (as the government suggests), simply turning over these files could constitute incriminating testimony by Doe that he "treated" this unrealistic number of patients during the specified periods. Similarly, since the subpoenas call upon Doe to surrender what may be an inappropriately large number of forms reflecting his prescriptions of controlled substances during limited time periods (see items 3 and 5), the mere act of compelling Doe to produce these documents could be compelling him to be a witness against himself. Thus, the act of complying with these subpoenas could require appellant's compelled, testimonial self-incrimination and may therefore give rise to a Fifth Amendment privilege not to comply.

II

Having decided that the mere act of surrendering these documents to the government may be testimonial in nature, we turn to the issue of whether their production is mandated by the so-called "required records" exception to the Fifth Amendment. See Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). Under this exception, a person whose records are required to be kept by law has no Fifth Amendment protection against self-incrimination when these records are directed to be produced. This rule applies regardless of whether the records are kept pursuant to federal or state law. See id. at 17-18 & n. 25, 68 S.Ct. at 1384 & n. 25. To constitute "required records" the documents must satisfy a three-part test: (1) the requirement that they be kept must be essentially regulatory, (2) the records must be of a kind which the regulated party has customarily kept, and (3) the records themselves must have assumed "public aspects" which render them analogous to public documents. See Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968).

We have little difficulty applying the required records exception to the W-2 and Schedule II prescription forms. With respect to the W-2s, a wage earner filing a federal income tax return must attach a W-2 in order for the return to be complete. This requirement, found on the face of the tax form, has the force of law, see I.R.C. § 6011(a) (1976), and is part of the regulatory scheme established by the Internal Revenue Service. That the W-2s are records of a kind customarily kept by taxpayers is not open to dispute, and the public aspect requirement appears satisfied simply from the fact that the taxpayer is required to attach copies of his W-2 when filing, see Shapiro v. United States, supra.

As for the Schedule II prescriptions, New York law requires practitioners ² to prepare "official New York State prescriptions" for all Schedule II drugs and retain copies for five years. See N.Y.Pub.Health Law §§ 3332 & 3338(2) (McKinney 1977). These statutes are part of a comprehensive scheme established by the New York State Legislature to prevent harmful drugs from "being diverted into unlawful channels," Whalen v. Roe, 429 U.S. 589, 591, 97 S.Ct. 869, 872, 51 L.Ed.2d 64 (1977). Thus, these records are maintained pursuant to a regulatory scheme, cf. United States v. Warren, 453 F.2d 738, 742 (2d Cir.) (record keeping required under 21 U.S.C. § 360a(d) for certain controlled substances held to be part of a regulatory scheme), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972) and are of the kind customarily kept by the regulated party. The public aspect of the prescription is demonstrated by the requirement that a copy of it must be forwarded to the New York State Department of Health. See N.Y.Pub.Health Law §§ 3331(6) & 3333(4) (McKinney 1977); cf. United States v. Warren, 453 F.2d at 742 (similar scheme has public aspect).

The more troublesome issue...