984 F.2d 705 (6th Cir. 1992), 91-2331, United States v. August

Docket Nº:91-2331.
Citation:984 F.2d 705
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey AUGUST, Defendant-Appellant.
Case Date:December 23, 1992
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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984 F.2d 705 (6th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jeffrey AUGUST, Defendant-Appellant.

No. 91-2331.

United States Court of Appeals, Sixth Circuit

December 23, 1992

Argued Sept. 21, 1992.

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[Copyrighted Material Omitted]

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Jonathan Tukel (argued & briefed), Office of U.S. Atty., Detroit, MI, for plaintiff-appellee.

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Richard P. Zipser (argued & briefed) Hertz, Schram & Saretzky, Bloomfield Hills, MI, for defendant-appellant.

Before: JONES and SILER, Circuit Judges; and PECK, Senior Circuit Judge.

PER CURIAM.

Defendant-Appellant Dr. Jeffrey August, a doctor of podiatric medicine, appeals his conviction and sentence for possession with intent to distribute controlled substances and unlawful failure to maintain records regarding controlled substances. For the reasons stated herein, we affirm both his conviction and sentence.

I.

On January 28, 1991, a federal grand jury in Detroit, Michigan returned a fourteen-count indictment against August. Count 1 of the indictment charged that from January 1987 through June 1990, August distributed hydrocodone compound syrup ("hydrocodone") and Hycodan syrup ("Hycodan"), both Schedule III cough syrups, outside the course of professional practice and for no legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1) (1988). Counts 2 through 13 charged August with possessing, on various dates, quantities of hydrocodone and Hycodan with the intent to distribute the substances outside the course of professional practice and for no legitimate medical purpose, in violation of § 841(a)(1). Count 14 charged that from January 1987 through June 1990, August unlawfully failed to maintain records regarding his inventory of controlled substances, in violation of 21 U.S.C. §§ 827(a)(3) (1988) and 843(a)(4)(A) (1988).

August's trial commenced on July 9, 1991. The evidence at trial showed the following:

In early 1987, August began buying quantities of hydrocodone and Hycodan from Henry Schein, Inc., of Port Washington, New York. Hycodan is a DuPont product; hydrocodone is its generic name. The two products are identical chemically. The active ingredient is hydrocodone bitartrate, a narcotic. From January 1987 through March 1990, August placed more than 100 orders with Schein, making net purchases totalling ninety-nine gallons of the cough syrups. August's costs in buying the syrups from Schein were approximately $8 per pint for hydrocodone and $30-$35 per pint for Hycodan. The drugs sell for $80-$190 per pint on the illegal market.

In May 1990, diversion investigators of the United States Drug Enforcement Administration ("DEA") began looking into August's purchases of the cough syrup. Diversion investigators monitor purchases of controlled substances by doctors, pharmacists, and others who are licensed to dispense controlled substances for legitimate medical purposes, to ensure that licit pharmaceuticals are not diverted to the illegal market. The investigators found that August's total purchases were double those of the average United States pharmacy; fifty-five times larger than the purchases of the average U.S. physician in 1987; seventy-six times larger than the purchases of the average doctor in 1988; and seventy-one times greater than those of the average doctor in 1989. His purchases of hydrocodone were four times as great as those of the average U.S. hospital. August purchased ninety-nine percent or more of all the hydrocodone sold to podiatrists in Michigan in each of the years 1987 through 1989.

After they secured copies of August's purchasing records from Schein, diversion investigators went to August's office in Belleville, Michigan on several occasions. On three occasions--May 22, May 23, and May 29, 1990--investigators went to his office in order to inspect his controlled substance records; however, August was unable to produce records on any of those occasions. On those occasions, August stated to DEA investigators that he had dispensed the cough syrups to patients in the course of his podiatric practice, and that the patient records would account for the disposition of the drugs. August stated that none of the cough syrup was in the office. August personally handled all of his practice's drug purchases. He opened

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all of the packages from Henry Schein, Inc., and maintained the drug inventory. On June 1, 1990, DEA agents executed a search warrant of August's office; however, no cough syrups or records relating to the controlled substances were found. DEA investigators seized all of August's patient files, approximately 1100 in all.

In late 1988, prior to the DEA's commencement of its investigation, the Michigan Department of Licensing began its own administrative investigation of August's purchases of the cough syrup. On February 1, 1989, the Department of Licensing executed an administrative search warrant of August's office. Pursuant to the warrant, the Department of Licensing seized approximately eight pints of hydrocodone and Hycodan. August had repackaged the cough syrups into thirty-three small plastic bottles. August had individually labelled the bottles "Hydrocodone" or "Hycodan" and had placed them in a box on which he had written "Nectar of the Gods: Hydros and Hycos." DEA diversion investigator Katherine Chaney was of the opinion, based on her experience, that the cough syrup in the bottles was packaged for distribution on the illegal market.

Prior to his trial, August testified at an administrative hearing before the Michigan Department of Licensing. At that hearing, August testified that ninety percent of the drugs had been administered to his patients and that he merely forgot to note in the patient files that he had so dispensed it. The patient records which the DEA seized on June 1, 1990 indicated that August had given hydrocodone to seven of his 1100 patients, accounting for approximately one-half pint of cough syrup. August personally maintained all of the patient files, and wrote all of the notations about how the cough syrup had been dispensed. Five of the patients to whom he supposedly had dispensed cough syrup testified at trial that they never received the drug from him.

At trial, August's defense was not that he had lawfully dispensed the drugs to his patients, but rather that he had been addicted to the drugs and had consumed them himself.

August had two witnesses testify as part of his case. Dr. Richard Rech, a pharmacologist, testified that it is possible for a person to consume ninety-nine gallons of hydrocodone over a three and one-half year period. August also called Dr. Michael Abramsky, a PhD in psychology, as an expert witness. Dr. Abramsky testified that, in his opinion, August had been a drug addict from late 1986 or early 1987 until early 1990, coinciding with the time period of the indictment. Dr. Abramsky examined August for the first time in early 1991, after he had been indicted, and after his alleged drug abuse problem had ended.

At trial, the government presented testimony which contradicted the conclusions of August's witnesses. Dr. Eugene Schoener, a pharmacologist, and Dr. Robert Forney, a pharmacologist and toxicologist, disputed Dr. Rech's testimony that August could have consumed ninety-nine gallons of the cough syrup. Both men stated that August would have suffered tremendous side effects, including blurred vision, mental clouding, inability to perform normal tasks or to carry on his podiatric practice, and possibly death. Several witnesses contradicted Dr. Abramsky's conclusion that August had been addicted to the cough syrup. August's former receptionist, Mary McGlory, testified that August never appeared to be under the influence of drugs, was not sluggish, continued to perform surgery, did not unexpectedly cancel patient surgeries, and did not have trouble driving. None of the five patients who testified at trial experienced any problems as a result of August having performed surgery on them, and a number thought he was a very skillful doctor.

During jury deliberations, the jury sent two notes to the judge. The jury sent out its first note at 4:45 p.m. on July 22, 1991. That note stated that the jury had reached agreement as to Counts 1 and 14, but could not reach agreement on Counts 2 through 13. At that point, the jury was sent home for the day and the district court called for a conference the next morning with counsel

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for both parties. The jurors resumed their deliberations at 9:00 a.m. the next morning. At that point, the jurors asked, through a second note, to be reinstructed on the definitions of reasonable doubt and intent. The district judge then held a conference in his chambers with counsel for both parties and discussed both notes, following which he gave supplemental instructions, a course of action which was agreed to by both parties.

On July 23, 1991, the jury found August guilty of Counts 2 through 14, but not guilty of Count 1. On November 26, 1991, August was sentenced. Because Counts 2 through 4 involve crimes which were committed prior to November 1, 1987, they were not governed by the United States Sentencing Commission's Guidelines Manual [hereinafter U.S.S.G.]. See United States v. Benskin, 926 F.2d 562, 564 (6th Cir.1991). The district court sentenced August to a forty-nine month term of imprisonment on Counts 5 through 13, and to a forty-eight month consecutive term of imprisonment on Count 14, for a total of ninety-seven months of imprisonment on the post-guideline counts. The district court imposed a forty-nine month concurrent sentence as to the pre-guideline counts. August then filed this appeal.

II.

August first argues that he received ineffective assistance of counsel at various stages of his trial and sentencing. First, he alleges that his trial attorney failed to present evidence at sentencing that August consumed some of the cough...

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