U.S. v. Gurley, s. 89-2384

• Decision Date: 13 November 1990
• Docket Number: 89-2418,90-1071,Nos. 89-2384,s. 89-2384
• Citation: 918 F.2d 179
• Parties: Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Wilbert M. GURLEY, Roosevelt Taylor, and Willie J. Williams, Defendant-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 179

918 F.2d 179

Unpublished Disposition

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Wilbert M. GURLEY, Roosevelt Taylor, and Willie J. Williams Defendant-Appellees.

Nos. 89-2384, 89-2418, 90-1071.

United States Court of Appeals, Sixth Circuit.

Nov. 13, 1990.

Before NATHANIEL R. JONES and WELLFORD, Circuit Judges, and ENGEL, Senior Circuit Judge.

PER CURIAM.

Defendant-appellants Wilbert Gurley, Dr. Roosevelt Taylor, and Willie Williams appeal their convictions for conspiracy to illegally distribute prescription drugs. Williams also appeals the district court's order of forfeiture. For the following reasons, we affirm the convictions and the order of forfeiture.

I

On March 10, 1989, a superceding indictment ¹ was filed charging defendant-appellants Dr. Roosevelt Taylor, Wilbert Gurley, and Willie Williams with conspiracy to illegally distribute prescription drugs, in violation of 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. Sec. 846. Counts two through fifteen charged Taylor with unlawful distribution of controlled substances, in violation of 21 U.S.C. Sec. 841(a)(1). The superceding indictment also charged Gurley with unlawful delivery of valium and talwin, in violation of 21 U.S.C. Sec. 841(a)(1). Allegations of forfeiture were filed pursuant to 21 U.S.C. Sec. 853 with respect to Taylor's home and Williams' motor home.

Dr. Roosevelt Taylor was a physician at Flint (Michigan) Osteopathic Hospital (FOH) for nearly twenty years before his privileges were revoked in 1980. Dr. Taylor sued FOH claiming that he was suspended from the hospital because he threatened to expose insurance fraud. His suit against FOH was dismissed in 1984. Willie Williams was the owner and operator of the Dort Prescription Center in Flint between 1985 and 1987. The indictment alleged that: (1) over a period of nearly two years Dr. Taylor wrote numerous prescriptions for controlled substances without a license and without a legitimate medical purpose; (2) Williams accepted the prescriptions, and dispensed them in generic form while billing at brand-name prices; and (3) Gurley assisted Dr. Taylor in the illegal distribution of prescription drugs.

A jury trial began on July 18, 1989. Gurley, Williams, and Taylor were found guilty on all counts on August 10, 1989. In December 1989, Taylor was sentenced to concurrent prison terms of eight, three, and one years; Gurley was sentenced to one year concurrent terms on each count; and Williams was sentenced to a six year term and a $15,000.00 fine. In addition, Williams was ordered to forfeit his motor home as well as all interest in the Dort Prescription Center, and Taylor was ordered to forfeit his residence. These timely appeals followed.

II

Taylor's first argument is that the district court erred in preventing him from presenting a portion of his duress defense. At trial, Taylor sought to defend against charges that he wrote prescriptions without any legitimate medical purpose by claiming that he was threatened by government agents. These threats, as well as his prosecution, asserts Taylor, were part of a conspiracy against him by state and federal officials because of his attempts to expose insurance fraud at FOH.

Counsel for Taylor first raised the selective prosecution issue during opening statements. At that point, the district court dismissed the jury and allowed Taylor's lawyer to make an offer of proof. J.App. at 483-84. Taylor then testified about his contacts with individuals who he believed were from the U.S. Attorney's office and who threatened him with bodily harm because of his knowledge of insurance fraud at FOH. J.App. at 490-504. The district court found, at the conclusion of the hearing, that there was no evidence of a connection between these individuals and the U.S. Attorney's office.

Taylor's lawyer then argued that because Taylor believed the conspiracy to be true, he should be entitled to present all aspects of his theory of duress. Id. at 537. The district court ruled that because of a lack of evidence, Taylor would not be permitted to allege that this prosecution was instigated by FOH, working with the government, "to shut Dr. Taylor up." Id. at 857. The court allowed Taylor to present evidence as to other threats or intimidations against Taylor. Id. At other points during the trial, the district court precluded Taylor from introducing evidence of his dispute with FOH. Id. at 891-92, 981, 1029-30.

We review the district court's exclusion of Taylor's testimony regarding the "conspiracy" under an abuse of discretion standard. Schrand v. Federal Pacific Elec. Co., 851 F.2d 152, 157 (6th Cir.1988). An abuse of discretion exists with respect to an evidentiary ruling "when the reviewing court is firmly convinced that a mistake has been made." Id. This court requires a defendant asserting a duress defense to show "an immediate threat of death or serious bodily harm ... in a situation in which there was no opportunity to avoid the danger." United States v. Campbell, 675 F.2d 815, 821 (6th Cir.), cert denied sub nom. Fultz v. United States, 459 U.S. 850 (1982) (quoting United States v. Campbell, 609 F.2d 922 (8th Cir.1979), cert. denied, 445 U.S. 918 (1980)). In addition, "[i]f evidence is introduced, but it is apparent that all of the requirements of the coercion defense are not addressed, the trial court is not obligated to allow the evidence to remain for consideration by the jury." Id.

Taylor wanted to include his dispute with FOH as a part of his duress defense to provide a context for his belief that the threats were real. The district court did, in fact, instruct the jury on Taylor's duress defense. J.App. at 1221. Moreover, the district court went to great lengths throughout the trial to ascertain Taylor's theory of defense, and gave Taylor ample opportunity to present any relevant evidence. Even Taylor's lawyer conceded that he had been given "all kinds of latitude in this case." Id. at 1028. The district court found, however, that the possibility the jury could be confused or misled by the "conspiracy" involving FOH outweighed its probative value. Furthermore, the district court found that there was no evidence, other than Taylor's own testimony, to support his theory that he was being prosecuted for exposing fraud at FOH. As a result, we find that the district court did not abuse its discretion in excluding testimony concerning Taylor's relationship with FOH.

III

Both Gurley and Williams argue that they were prejudiced by the district court's denial of their motions for severance. Fed.R.Crim.P. 14 allows a trial judge to sever defendants or grant separate trials if a party would be "prejudiced." The district court's denial of defendants' motions for severance is reviewed under an abuse of discretion standard. United States v. Scaife, 749 F.2d 338, 344 (6th Cir.1984). To show an abuse of discretion, defendants must make "a strong showing of prejudice ... [such that] the jury was unable to separate the evidence against each defendant." Id. Even if there is some prejudice, "this factor must be balanced against society's need for speedy and efficient trials." Id.

Gurley and Williams argue that "the bizarre, antagonistic nature of Taylor's [conspiracy] defense misled, confused and affronted the jury, and only severance could have prevented it." Gurley Brief at 27. In support, Gurley and Williams point to the testimony of Dr. Price, who was called as a character witness for Dr. Taylor. After it was revealed that Price had distributed cocaine to a government witness in this case, Price's testimony was stricken. Williams and Gurley now assert, without further elaboration, that this testimony destroyed any opportunity for their defenses to be evaluated separately by the jury.

The district court instructed the jury to evaluate each defendant separately:

Now, you should consider each instruction that I give you as applying separately and individually to each of the defendants on trial. While there are three defendants in this case, their guilt or innocence must be determined by you separately. There must be verdicts as to each of the defendants separately.

J.App. at 1220.

As the government points out, Williams and Gurley fail to specify which particular events sufficiently prejudiced their cases to justify a severance. United States v. Graham, 548 F.2d 1302, 1311 n. 8 (8th Cir.1977) ("[U]nsupported allegations of co-defendant misconduct and resultant prejudice are insufficient to justify a finding that the District Court abused its discretion in not granting their motions for severance."). Because Williams and Gurley have not demonstrated with sufficient detail that they were prejudiced at trial by Taylor's defense, we conclude that the district court's denial of their motions for severance was not an abuse of discretion.

IV

Williams and Gurley argue that the evidence is insufficient to support their convictions for conspiracy under 21 U.S.C. Sec. 846. Gurley asserts that "[n]ot one of the several witnesses testifying either for the Government or the co-defendants suggested any agreement between defendant and the co-defendants to agree to do any illegal act[.]" Gurley Brief at 22. Williams argues that although he filled prescriptions issued by Dr. Taylor, the evidence does not support a finding of conspiracy to commit an illegal act. Both Williams and Gurley rely on United States v. Blasco, 702 F.2d 1315, 1330 (11th Cir.1983), for the propositions that "[a] defendant may not be convicted unless the evidence adduced at trial is sufficient to demonstrate his own complicity beyond a reasonable doubt. Guilt by association may not attach; the prosecution must individualize its proofs as to each alleged...