U.S. v. Betancourt

• Decision Date: 18 June 1984
• Docket Number: No. 83-5087,83-5087
• Citation: 734 F.2d 750
• Parties: 15 Fed. R. Evid. Serv. 1563 UNITED STATES of America, Plaintiff-Appellee, v. Bernardo BETANCOURT, Bernardo Sando, Norman Gerwitz, Gene Chekanow, Defendants- Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 750

734 F.2d 750

15 Fed. R. Evid. Serv. 1563

UNITED STATES of America, Plaintiff-Appellee, v. Bernardo BETANCOURT, Bernardo Sando, Norman Gerwitz, Gene

Chekanow, Defendants- Appellants.

No. 83-5087.

United States Court of Appeals,

Eleventh Circuit.

June 18, 1984.

Rehearing and Rehearing En Banc Denied July 30, 1984.

Rehearing Denied Aug. 20, 1984.

Sophie De Mayo, Miami, Fla., for Betancourt.

Robyn Hermann, Asst. Federal Public Defender, Miami, Fla., for Sando.

Louis Vernell, North Miami Beach, Fla., James G. Roth, Miami Beach, Fla., for Gerwitz.

Donald I. Bierman, Benedict P. Kuehne, Bierman, Sonnett, Shohat & Sale, Miami, Fla., for Chekanow.

Stanley Marcus, U.S. Atty., and Linda Collins Hertz and William M. Norris, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before FAY and ANDERSON, Circuit Judges, and MARKEY ^*, Chief Judge of the Federal Circuit.

FAY, Circuit Judge:

Appellants Bernardo Betancourt, Gene Chekanow, Norman Gerwitz and Bernardo Sando were charged in a seven count indictment alleging violations of 21 U.S.C. Secs. 841(a)(1), 846 and 848. ¹ After a jury trial they were found guilty on all counts. Each appellant challenges his convictions on several grounds. We find the trial court's only error was its communication with the jury without notice to counsel but this error was harmless. We affirm each appellant's conviction on all counts.

I. FACTS

In July, 1981, appellants Chekanow and Gerwitz took over a clinic in North Miami called Dade Obesity and Stress Clinic. In November they opened a second clinic in the Galloway Medical Center. In early 1982, they opened a third clinic, next door to the North Miami clinic and called it United Medical Services. All three clinics ostensibly treated obesity and stress. Appellants Betancourt and Sando were the doctors at the clinics.

All three clinics had the same procedure for treating patients. ² Each patient would initially fill out a medical history, a psychological profile and have his blood taken. A therapist would interview the patient and check his vital signs. Then, he would meet the doctor, pay $100 and get a prescription for 45 tablets of methaqualone. On subsequent visits the patient would not have to fill out any forms or have his blood checked. If a patient returned to the clinic within thirty days, clinic personnel would send him to one of the other clinics to get another prescription. The three clinics had a total of 6,745 patient visits and 99.64% received prescriptions for 45 tablets of methaqualone. R.Vol. 17 at 1311.

Appellants raise six issues on appeal:

(1) whether the district court erred in denying their motions to suppress due to defective search warrants?

(2) whether the district court erred in holding the trial in West Palm Beach?

(3) whether the district court erred in refusing to exclude prejudicial medical testimony?

(4) whether the evidence was sufficient to sustain the convictions?

(5) whether the prosecutor improperly commented on appellants' failure to testify? and

(6) whether the appellants' constitutional rights were violated due to communications between the judge and the jury without appellants' counsel being notified or present?

II. SEARCH WARRANTS

On May 18, 1982, the government searched appellants' clinics and seized records pursuant to two search warrants issued by a magistrate. Each warrant and supporting affidavit were identical except that one related to records in the office of Dade Obesity and Stress Clinic and the other related to records in the office of United Medical Services, Inc. Appellants challenge the warrants on several grounds. ³

A. Probable Cause

The Fourth Amendment requires that a search warrant be issued only when there is probable cause to believe that an offense has been committed and that evidence exists at the place for which the warrant is requested. Zurcher v. Stanford Daily News, 436 U.S. 547, 558, 98 S.Ct. 1970, 1977, 56 L.Ed.2d 525 (1978). This circuit has stated that probable cause exists "if facts within the magistrate's knowledge and of which he had reasonably trustworthy information would warrant a man of reasonable caution in the belief that a crime was committed and that evidence is at the place to be searched." United States v. Strauss, 678 F.2d 886, 892 (11th Cir.1982). A magistrate's decision that probable cause exists is conclusive absent arbitrariness. United States v. Long, 674 F.2d 848, 852 (11th Cir.1982).

The magistrate in this case had enough information to conclude that a search warrant should be issued. The magistrate had an affidavit from Emilio Cheves, a compliance investigator with the Drug Enforcement Administration, describing Cheves' interview for a job at one of the clinics. Cheves was told that his job would be to listen to patients' hearts and write prescriptions for methaqualone. This information was corroborated by Special Agent Mark R. Trouville who had gone to the clinic in an undercover capacity on four occasions. Each time he paid $100 and received a prescription for forty-five tablets of methaqualone. On the basis of this information, the magistrate could, without arbitrariness, find probable cause.

B. Particularity of the Description

The Fourth Amendment requires that warrants "particularly describe the place to be searched, and the persons or things to be seized." This requirement of particularity prevents "general, exploratory rummaging in a person's belongings," Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971), but elaborate specificity is unnecessary. The description is considered "sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized." United States v. Cook, 657 F.2d 730, 733 (5th Cir.1981). The standard "is one of practical accuracy rather than technical nicety." United States v. Johnson, 541 F.2d 1311, 1313 (8th Cir.1976).

The property in this case was described in each warrant as follows:

all financial records, including but not limited to all documents showing source and amount of income and disbursement, and patient records, limited to those records showing the dates of patient visits, all diagnostic tests performed and results obtained, diagnoses made, medications prescribed and the name of the diagnosing physician, from on or about June 15, 1981 [January 1, 1982], to the present which are evidence of violations of Title 21, United States Codes, Section 841(a)(1).

This description prevented a general search and was as specific as the circumstances and nature of the activity permitted. See, United States v. Slocum, 708 F.2d 587 (11th Cir.1983).

C. Reliability of Informant

Appellants also assert that the information relied on by the court to establish probable cause did not meet the test for reliability established by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We disagree. In Illinois v. Gates, the Supreme Court abandoned the prior, rigid "two-pronged test" of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and established instead a flexible standard. Courts should now use a totality of the circumstances analysis to determine whether an informant's tip establishes probable cause. Id. 103 S.Ct. at 2332. Under the new test the issuing magistrate must only "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying [the] hearsay information," id., there is probable cause to issue the search warrant. Reviewing courts must only "ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id., quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960).

All of the circumstances in this case indicate probable cause existed to issue the warrant. The hearsay information offered by the informant was corroborated by independent evidence. The magistrate had substantial basis for concluding that probable cause existed.

III. VENUE

This case was first noticed for trial in Miami on August 2, 1982. Chekanow filed a motion for continuance and trial was rescheduled for Miami on September 20, 1982. Next, Gerwitz moved for a continuance and the case was set for trial in Fort Lauderdale on October 18, 1982. Sando then moved for a continuance and trial this time was scheduled for November 2, 1983, in West Palm Beach. Betancourt then moved for a continuance but the district judge denied the motion and trial was held in West Palm Beach. Appellants now claim that holding the trial in the Northern Division of the district, rather than in the Southern Division where the offense occurred, violated their rights under Fed.R.Crim.P. 18. We disagree.

Prior to 1966 Rule 18 required trial in the division in which the offense was committed. ⁴ The 1966 amendment eliminated the requirement of trial within a division and vested discretion instead in the court "to fix the place of trial at any place within the district with due regard to the convenience of the defendant and his witnesses." Advisory Committee Notes, Fed.R.Crim.P. 18 1966 Amendment. (emphasis added). The Fifth Circuit narrowly construed the rule's new language in Dupoint v. United States, 388 F.2d 39 (5th Cir.1968). The court concluded that trial was not allowed in a division other than that in which the offense was committed unless the trial judge found that it was not convenient to the defendant or his witnesses. Id. at 39. It was reversible error to change venue for the convenience of the prosecution.

The Speedy Trial Act of 1974 added another problem to the 1966 rule. The Act provided:

In any case involving a defendant charged...