U.S. v. Cooper, s. 87-2118

• Decision Date: 01 March 1989
• Docket Number: 87-2119 and 87-2183,Nos. 87-2118,s. 87-2118
• Citation: 868 F.2d 1505
• Parties: 27 Fed. R. Evid. Serv. 680 UNITED STATES of America, Plaintiff-Appellee, v. Otis COOPER, Sylvester Graham and Dennis R. Hoyer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1505

868 F.2d 1505

27 Fed. R. Evid. Serv. 680

UNITED STATES of America, Plaintiff-Appellee, v. Otis COOPER, Sylvester Graham and Dennis R. Hoyer Defendants-Appellants.

Nos. 87-2118, 87-2119 and 87-2183.

United States Court of Appeals Sixth Circuit.

Argued Nov. 14, 1988.

Decided March 1, 1989.

Leslie Chernikov (argued), and Seymour Berger (argued), Detroit, Mich., and Don Ferris (argued), Ann Arbor, Mich., for defendants-appellants.

Kathleen Moro Nesi, and Patricia G. Blake, Asst. U.S. Attys., Larry Bunting, U.S. Attorney's Office, Maura Corrigan (argued), Detroit, Mich., for plaintiff-appellee.

Before ENGEL, Chief Judge, and WELLFORD, Circuit Judge; and THOMAS, Senior United States District Judge. ^*

WILLIAM K. THOMAS, Senior District Judge.

In the District Court for the Eastern District of Michigan, Southern Division, the Grand Jury returned an indictment of thirty-four counts against 37 individuals. Only four of the 37 indicted were tried. Thirty-two pled guilty and one was dismissed. In count one, thirty-six persons were charged with conspiracy from January, 1984 to April, 1987, in violation of 21 U.S.C. Secs. 846, and 841(a)(1), to knowingly possess with intent to distribute, and the distribution of, Dilaudid, Percodan, Demerol, Desoxyn and six other identified prescription drugs. As the Court charged the jury, the offense of count one was defined as conspiracy to possess with intent to distribute, and distribution of controlled substances by false prescription. The Court further instructed the jury that the "crime of conspiracy to possess with intent to distribute and the distribution of a controlled substance by false prescriptions includes one lesser offense as to Defendant Cooper and Defendant Graham ... conspiracy to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception and subterfuge."

On count one, the jury found Defendant/appellant Dennis Hoyer (hereafter defendant or appellant Hoyer) "guilty of conspiracy to possess with intent to distribute and distribution of controlled substances"; and that the controlled substances, defendant conspired to distribute, were "1, Dilaudid; 2, Percodan; 3, Demerol; 6, Talwin; 7, Ritalin." The jury also found Dennis Hoyer guilty of count two, "illegal use of a communication facility." On count one the jury found Defendant/appellant Otis Cooper (hereafter defendant or appellant Cooper) "guilty of conspiracy to possess with intent to distribute and distribution of controlled substances; 1, Dilaudid." Finally, the jury found Defendant/appellant Sylvester Graham (hereafter defendant or appellant Graham), on count one, "guilty of conspiracy to acquire or obtain possession of a controlled substance by false prescriptions; substances 1, Dilaudid." Defendants Cooper, Graham and Hoyer each appeal their convictions. ¹

I.

The testimony of George Ray and Denise Ray, his wife, ² permitted the jury to find these facts, among others. George Ray, his wife, and others, engaged in a scheme of prescription and pill distribution. Prescriptions for pills, including Dilaudid, Demerol, Talwin and other drugs were forged. While George Ray had purchased prescriptions from Linda Fisher's Hubbell Clinic, ³ beginning in July, 1985, he obtained prescriptions from Physicians Comprehensive Health Clinic (PCHC). In a second floor office, in a building on Grand River Avenue at the intersection of Hubbell Avenue in Detroit, the PCHC was run by Denise Ray and Michelle Ferguson with George Ray as overseer. The three owned the Clinic together, the evidence permitted the jury to find.

Ed Williams wrote prescriptions for PCHC, Linda Fisher's Hubbell Clinic, as well as for himself. ⁴ For verifying some of the PCHC prescriptions, Felton Kennedy received free rent from Denise Ray for his Rex Study Group in space adjoining PCHC. In exchange, when a pharmacy called for prescription verification, Kennedy would verify that "the doctor wasn't in or he was the doctor." There was no doctor at PCHC. Denise Ray and Michelle Ferguson ran the "clinic" on a day-to-day basis. Asked what was the purpose of the "clinic," she said "to sell prescriptions." When asked if there was a "legitimate purpose for the prescriptions you were selling," she answered, "No."

George Ray stated that the prescriptions would contain names of women or men "from the phone book or just out of the sky." He would either sell the prescriptions, known as "busting paper," for a higher price, or fill the prescriptions at pharmacies and sell the "pills." He took the prescriptions to pharmacies where he paid to get the prescriptions filled.

George Ray stated that he filled prescriptions at Van Dyke Pharmacy, where defendant Hoyer was pharmacist and part owner. Ray said that he and Hoyer conducted much of their prescription business over the telephone.

The evidence in the case is sufficient for the jury to have found that from mid-July to November, 1985, a conspiracy, including as members at least George Ray, Denise Ray and Michelle Ferguson, existed for the purpose of distributing false prescriptions and pills (controlled substances) by means of a sham clinic. Because proof of the membership of each of the three defendants in this appeal depends, in part, on telephone conversations between George Ray and the defendants that were intercepted and recorded, it is first essential to review the district court's authorization to make the essential wiretaps.

II.

Appellant Hoyer asserts that the trial court committed reversible error in denying his motion to suppress all fruits of electronic surveillance, thereby admitting into evidence at trial wiretapped conversations involving defendant Hoyer and physical evidence (prescriptions) seized pursuant to the November 12, 1985 search warrant, even though it was apparent that the requirements under 18 U.S.C. Sec. 2518 had not been met to properly allow for the issuance of a wiretap order. Appellant Hoyer contends that "ongoing, traditional surveillance methods already in use in this case by the FBI were producing satisfactory results which, in and of itself, would have likely resulted in the eventual indictment of Defendant/Appellant, without the necessity of Federal Agents asking for a court ordered wiretap."

Similarly, appellant Graham contends that the trial court "clearly erred in refusing to suppress the wiretaps because the affidavit in support of the wiretap application failed to establish adequate investigative necessity for the proposed interceptions." Appellant Graham states that he "joined in Defendant George Ray's pre-trial motion to suppress the wiretaps," and Ray's argument that "according to the affidavit, every traditional investigative technique used by the government had proved and was proving successful." Appellant Graham's motion to suppress is directed at four intercepted George Ray telephone conversations with a Sylvester, identified as Sylvester Graham.

Defendant Cooper did not move at pretrial to suppress the intercepted George Ray-Otis Cooper telephone conversations of October 18 and 21, 1985; therefore, the present ground of error under consideration does not apply to the George Ray telephone conversations with Otis Cooper. Likewise, conversations of George Ray with persons other than Dennis Hoyer or Sylvester Graham, transcripts of which were received in evidence, are not the subject of this ground of error.

The telephone conversations of George Ray, intercepted on his residence telephone, were authorized by District Judge DeMascio's order of October 16, 1985 in response to an application of the same date, pursuant to 18 U.S.C. Sec. 2518, and based on an 89 page affidavit of FBI Special Agent Diane E. Ruffino.

The Hoyer and Graham motions to suppress do not challenge Judge DeMascio's Order for lack of probable cause based on the Ruffino affidavit. Rather, they contend that the Ruffino affidavit does not support his finding, as required by 18 U.S.C. Sec. 2518(3)(c), that

normal investigative procedures either have been tried without success and reasonably appear unlikely to succeed if continued, or reasonably appear unlikely to succeed if tried for specific reasons more fully sat forth in the Application and Affidavit submitted in pursuit of this Order.

The Ruffino affidavit detailed the investigation of illegal prescription sales and distribution of controlled substances in Detroit, which with affiant's knowledge and direction was conducted by the FBI from late 1984 until the application was made to Judge DeMascio for an order authorizing wire and oral interceptions. Affiant Ruffino quoted confidential sources and interviews with former employees of one of the "clinics." Undercover operations were conducted, and illegal prescriptions purchased, particularly by one special agent. He engaged in consensual telephone monitoring also. Agents surveilled George Ray as he entered and left several pharmacies. Other investigative techniques included invoice and prescription review.

Thus, the facts submitted to Judge DeMascio established that "normal investigative procedures" had been extensively conducted, and that the requested interception of wire and oral communications was not "employed as the initial step in criminal investigation," United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341 (1974).

Defendant Hoyer notes that "George Ray was seen entering Van Dyke Prescription Center on July 25, 1985 and again on September 12, 1985." Surveillance uncovered this fact, but this was not enough to warrant indictment of Dennis Hoyer. However, to justify tapping George Ray's telephone, this surveillance fact could be added to the hearsay of a former Moreland Clinic employee that "George Ray knows a pharmacist on the east side of Detroit who will fill multiple prescriptions without making inquiry of a physician or the clinic as to whether or not prescriptions were actually dispensed in a...