U.S. v. Hayes

Citation794 F.2d 1348
Decision Date09 May 1986
Docket NumberNo. 84-1276,84-1276
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jude R. HAYES, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Brian C. Leighton, Fresno, Cal., for plaintiff-appellee.

Dale Parham, Porterville, Cal., Alan Dershowitz, Cambridge, Mass., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of California.

Before WALLACE, ANDERSON, and PREGERSON, Circuit Judges.

WALLACE, Circuit Judge:

Hayes appeals from his conviction for prescribing Schedule II drugs to patients in violation of the Controlled Substances Act, 21 U.S.C. Sec. 841(a)(1) (the Act). He contends that the jury was improperly instructed and that the government should not have been allowed to introduce in evidence his office records secured pursuant to search warrants. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

I

Hayes is a physician and treats patients at his offices in Porterville, Farmersville, and Ivanhoe, California. After receiving information that Hayes was prescribing medication in violation of the Act, agents of the United States Drug Enforcement Administration obtained warrants from a federal magistrate to search Hayes's three offices. The agents executed the search warrants and seized over 200 medical files.

Hayes then instituted a civil action for the return of the records, alleging that the issued warrants were unconstitutionally overbroad. The district court in the civil action concluded that the warrants were overbroad and ordered all of the seized records and documents to be returned unless Hayes was indicted by February 1, 1983. On January 28, 1983, a federal grand jury indicted Hayes on 640 counts of prescribing Schedule II drugs to his patients in violation of the Act. The indictment focused on Hayes's treatment of 20 patients over a three-year period; each prescription of a Schedule II drug constituted a separate count.

Prior to trial, Hayes moved to suppress the evidence seized from his offices on the basis that there was no probable cause to issue the search warrants and that the warrants were general, overbroad, and violated the fourth amendment. A different district judge denied his motion and held, contrary to the decision by the judge in the civil action, that the warrants were not overbroad. Hayes never argued that the decision by the court in the civil action collaterally estopped the court in the criminal action from considering the validity of the warrant. Therefore, we will not consider that issue on appeal. See United States v. Lasky, 600 F.2d 765, 769 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979); Mahoney v. United States, 420 F.2d 253, 255 (D.C.Cir.1969).

After an eight-week trial, the jury returned convictions on 281 counts. Hayes was sentenced to three years in prison with a consecutive three-year term of probation and was fined $100,000.

II

Hayes contends that the district court's initial and supplemental jury instructions were erroneous. A defendant is entitled to a jury instruction on a defense theory if the theory has a basis in law and in the record. See United States v. Coin, 753 F.2d 1510, 1511 (9th Cir.1985) (per curiam). The adequacy of the jury instructions, however, is determined by examining the instructions as a whole. See United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.) (Wellington ), cert. denied, --- U.S. ----, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985). "[I]t is not error to refuse a proposed instruction so long as the other instructions in their entirety cover that theory." United States v. Kenny, 645 F.2d 1323, 1337 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981).

The district court has broad discretion in formulating the instructions and need not give an instruction in the precise language proposed by the defendant. See United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985). "Imperfectly formulated jury instructions will serve as a basis for overturning a conviction only upon a showing of abuse of discretion." Wellington, 754 F.2d at 1463.

A.

Hayes contends that the initial jury instructions concerning the elements of the offense with which he was charged were misleading. The court instructed the jury that the government must prove that Hayes "knowingly did an act which the law forbids, purposefully intending to violate the law." The court read to the jury the relevant part of 21 U.S.C. Sec. 841(a)(1) and then instructed them that in order to convict Hayes they

must find as to each of those counts that the Government has proven beyond a reasonable doubt each of the elements necessary to establish the offense: 1) That Dr. Jude R. Hayes, defendant, was a registrant authorized to dispense controlled substances for legitimate medical purposes; 2) That the defendant knowingly and intentionally issued a prescription; 3) That the prescription was for a Schedule II narcotic controlled substance as alleged; and 4) That the prescription was issued by him other than in good faith, for a legitimate medical purpose, in the usual course of his professional practice.

The questions raised before us pertain to the fourth element. The court instructed the jury about the meaning of good faith:

[G]ood faith means an honest effort to prescribe for a patient's condition in accordance with the standard of medical practice generally recognized and accepted in the country. Mistakes, of course, are not a breach of good faith....

You need not agree with or believe in a standard practice of the profession, but must only be concerned with a good faith attempt to act according to them. Good faith is not merely a doctor's sincere intention towards the people who come to see him, but, rather, it involves his sincerity in attempting to conduct himself in accordance with a standard of medical practice generally recognized and accepted in the country.

Hayes contends that these instructions are misleading and contrary to our holding in United States v. Boettjer, 569 F.2d 1078 (9th Cir.) (Boettjer ), cert. denied, 435 U.S. 976, 98 S.Ct. 1627, 56 L.Ed.2d 71 (1978). In Boettjer, we reviewed a jury instruction which stated that to convict a physician of distributing Schedule II drugs in violation of the Act, the jury had to find beyond a reasonable doubt that the prescription was issued "other than in good faith for a legitimate medical purpose and in accordance with the medical standards generally recognized and accepted in the medical profession." Id. at 1081 (emphasis in original). We expressed concern in Boettjer that the jury could have interpreted this instruction in three conflicting ways, but concluded that there was no persuasive showing of actual prejudice and that a more precise instruction would not have altered the jury's deliberations. Id. at 1081-83.

Hayes raises a similar argument here. He contends that the instructions given permitted the jury to convict him if he acted in good faith but failed to conform to standard medical practices--that is, a conviction based on negligence. Hayes's argument is weighty only if we read in isolation the instruction which states that a prescription must have been issued "other than in good faith, for a legitimate medical purpose, in the usual course of his professional practice." Jury instructions, however, must be viewed as a whole in the context of the entire trial. See Wellington, 754 F.2d at 1463. In light of the district court's jury instructions on specific intent and good faith, we fail to see how the jury could interpret the instructions as permitting a finding of guilt based on mere negligence. Indeed, we rejected this very argument in Boettjer after concluding that "[i]t strains belief to imagine that the jury could have been misled into finding the defendant guilty if his actions were in accordance with medical standards." Boettjer, 569 F.2d at 1082 (emphasis in original). We emphasized that any possible confusion was eliminated by later instructions dealing with good faith and its relationship to standards of medical practice. Id. at 1082. Although more precise language could have been used, we reach the same conclusion in this case.

The court also instructed the jury about the Act's prohibition against prescribing Schedule II drugs for detoxification and maintenance of addiction:

Narcotic withdrawal or addiction is not a sufficient medical condition justifying the prescribing or administering of a narcotic controlled substance. Therefore, if you find that the defendant ... wrote a prescription for a narcotic control[led] substance on a narcotic addict who did not have a medical complaint other than addiction or withdrawal requiring the type of narcotic controlled substances prescribed, then the issuance of said prescription would not be in good faith in the usual course of professional practice for a legitimate medical purpose.

Hayes argues that this is improper "because it imposes an objective test as to both the existence of a medical complaint and the appropriateness of treatment." The instruction, however, properly states the law. See 21 C.F.R. Sec. 1306.07(c) (1985). If a patient were a narcotic addict and the only medical complaint was addiction or withdrawal, Hayes could not have issued the drugs in good faith. The instruction refers only to "a medical complaint other than addiction or withdrawal" as a proper basis for prescribing a Schedule II drug to a drug addict. Any vagueness in the instruction favored Hayes since section 1306.07(c) permits prescribing narcotic drugs to narcotic addicts only for "intractable pain in which no relief or cure is possible or none has been found after reasonable efforts." Id.

Without doubt, the instructions could have been improved. When viewed as a whole, however, the initial jury instructions given by the district court relating to both the elements of a ...

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