U.S. v. Andrew

• Decision Date: 01 February 1982
• Docket Number: No. 80-2275,80-2275
• Citation: 666 F.2d 915
• Parties: 9 Fed. R. Evid. Serv. 1325 UNITED STATES of America, Plaintiff-Appellee, v. William H. ANDREW, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 915

666 F.2d 915

9 Fed. R. Evid. Serv. 1325

UNITED STATES of America, Plaintiff-Appellee, v. William H. ANDREW, Jr., Defendant-Appellant.

No. 80-2275.

United States Court of Appeals Fifth Circuit.

Feb. 1, 1982.

Gerald M. Birnberg, Houston, Tex., court appointed, for defendant-appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District Of Texas.

Before GARZA and RANDALL, Circuit Judges. ^*

GARZA, Circuit Judge:

Doctor William Harvey Andrew is here appealing his conviction on six counts for knowingly, intentionally and unlawfully dispensing dilaudid ¹ and preludin, ² not in the usual course of professional practice for a legitimate medical purpose. ³ For the reasons set forth in the opinion below, we affirm.

Sometime in mid-1978, Cooper John ("Doc") Jones, a drug pusher, was contacted by a pharmacist who informed him that appellant, Dr. Andrew, wanted to see him. At that time Andrew was a physician practicing in Humble, Texas. Jones met with Andrew and shortly thereafter the two of them began "doing business together." In this confederacy, Jones would get the names, drivers' license numbers, dates of birth and approximate weight and height from the different people who wanted preludin and dilaudid prescriptions. This data would be relayed to Andrew who would then write prescriptions ("scripts") against the names. Jones would pay the doctor $30 for a preludin prescription of 60 tablets, and $250 for a dilaudid prescription of 100 tablets.

On January 26, 1979, Jones was arrested by special agents Mathis and Brooks of the United States Drug Enforcement Agency just after he had obtained some dilaudid using an Andrew "script." Jones was charged with the state offense of unlawful possession of dilaudid. Subsequently, Jones was also indicted in four other independent federal drug cases. Thereupon, Jones agreed to cooperate with the government in making a case against Andrew.

On April 11, 1979, Jones took Agent Mathis to Andrew's office in Humble. Mathis was introduced to Andrew as "Jesse Davis." Jones told Andrew that Mathis was working with him and would be coming to pick up prescriptions from the doctor. Andrew responded that it was "okay." Andrew then asked Jones whether he was experiencing any difficulty in getting the prescriptions at the pharmacies. When Jones answered in the affirmative, Andrew suggested that they try a pharmacy in Port Arthur. Andrew also suggested that it would be better to have the people who cashed the prescriptions wear neck braces in order to appear to be in pain. Andrew and Jones also talked about the ambenyl syrup ⁴ business, in which Andrew was involved, and Andrew mentioned the difficulty he was experiencing in finding a suitable bottle cap.

After discussing ambenyl syrup, Jones turned to Mathis and asked him how many prescriptions he needed and for what drug. Mathis' response was that he needed two prescriptions for dilaudid. Jones gave Andrew a piece of paper containing the names and drivers' license numbers of two persons and said, "We want two dilaudid prescriptions." Without any hesitation and without any inquiry about the persons named in the paper, Andrew took out his prescription pad and wrote down two prescriptions for that drug. Jones then took $200 from Mathis and gave it to Andrew. The total cost of the two prescriptions was $500, at the rate of $250 per 100 tablet prescription. The remaining $300 balance was later paid by Jones to Andrew. On Jones' suggestion, Andrew also gave Mathis a preludin prescription without giving him any physical examination; the regular charge of $30 was waived.

On April 26, 1979, Mathis again went to Andrew's office, but this time he went alone. Andrew, without any prompting on Mathis' part, recognized him as Jesse Davis. Andrew asked Mathis how "business" was doing and also whether he had tried to get his prescriptions filled at the previously recommended Port Arthur pharmacy. Mathis then said to Andrew, "Doc, I'd like to get three of those D's scripts." ⁵ Andrew replied, "Okay," and taking the slip of paper from Mathis containing the names and license numbers of three individuals, wrote down three dilaudid prescriptions. Mathis then inquired what the cost of the prescriptions would be, to which Andrew replied, "They will be $250 apiece." Mathis paid Andrew $750.

At trial, appellant's theory of defense was two-fold. First, the defense contended that at the time of the events in question, Andrew was suffering from a severe mental disorder, as a result of which he lacked substantial capacity to conform his conduct to the requirements of the law. Alternatively, if Andrew's condition was not so dire as to constitute legal insanity, he was at least so incapacitated that he had been "entrapped" into the commission of the offense by the government's agent, Cooper Jones. With respect to the insanity defense, both sides offered expert and lay witness testimony on the issue. As to entrapment, the appellant requested that an entrapment instruction be submitted to the jury, but the court refused to so instruct. The jury found Andrew guilty of all six counts of the indictment.

Four issues are asserted on this appeal: (1) whether the sanity of appellant was proven beyond a reasonable doubt; (2) whether the trial court's initial instructions regarding the insanity issue and its supplemental instructions concerning the burden of proof were adequate and sufficient; (3) whether the trial court properly refused an entrapment instruction; and (4) whether the trial court committed reversible error when it forbade defense counsel from asking before the jury the exact number of years Jones could have been sentenced. Each will be considered separately.

The Insanity Defense

The first issue we are confronted with is one concerning the sufficiency of the evidence; i.e., whether the sanity of appellant was proved beyond a reasonable doubt. We find that it was.

Initially, the law presumes sanity. United States v. Holt, 450 F.2d 868, 869 (5th Cir. 1971); Gordon v. United States, 438 F.2d 858, 884 (5th Cir. 1971), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56 (1971). That presumption vanishes, however, once the defendant introduces even slight evidence tending to prove his lack of capacity at the time of the offense. At that point the burden shifts to the government to prove beyond a reasonable doubt that such capacity existed. E.g., United States v. Mota, 598 F.2d 995, 999 (5th Cir. 1979), cert. denied, 444 U.S. 1084, 100 S.Ct. 1042, 62 L.Ed.2d 770 (1979); United States v. Davis, 592 F.2d 1325, 1329 (5th Cir. 1979), cert. denied, 442 U.S. 946, 99 S.Ct. 2894, 61 L.Ed.2d 318 (1979); United States v. Iverson, 588 F.2d 194, 196 (5th Cir. 1979); United States v. Pilkington, 583 F.2d 746, 747 (5th Cir. 1978), cert. denied, 440 U.S. 948, 99 S.Ct. 1427, 59 L.Ed.2d 637 (1978); United States v. Fratus, 530 F.2d 644, 648 (5th Cir. 1976), cert. denied, 429 U.S. 846, 97 S.Ct. 130, 50 L.Ed.2d 118 (1976); United States v. Phillips, 519 F.2d 48, 49 (5th Cir. 1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 796, 46 L.Ed.2d 650 (1975); and United States v. Milne, 487 F.2d 1232, 1235 (5th Cir. 1973), appeal after remand, 498 F.2d 329 (5th Cir. 1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 808, 42 L.Ed.2d 823 (1975).

The standard that this circuit has adopted for defining lack of mental capacity to commit a crime was set forth in Blake v. United States, 407 F.2d 908 (5th Cir. 1969) (en banc):

"(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. (2) As used in this Article, the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct."

Id. at 916. There is no question that Andrew raised the issue of his sanity at the time of the offense. It was the government, then, that had the burden of proving beyond a reasonable doubt that he was sane at the time of the crime. As to achieving that goal, we have noted that

This Court, however, has never empirically defined the amount of evidence necessary to constitute "sufficiency" for purposes of submitting the issue of sanity to the jury, but instead has stated that each case must be decided on its own facts, and that the quantum and nature of proof the government must offer depends upon the quantum and nature of proof the defendant offers. Nagell v. United States, 392 F.2d 934, 937 (5th Cir. 1968).

United States v. Fratus, 530 F.2d at 648. Moreover, the jury's verdict must be sustained if, taking the view most favorable to the government, there is substantial evidence to uphold it. Burks v. United States, 437 U.S. 1, 16-18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1, 13-14 (1978); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); and United States v. Pilkington, 583 F.2d at 747.

When the basic issue before the appellate court concerns the sufficiency of the Government's proof of a defendant's sanity (as it did here), a reviewing court should be most wary of disturbing the jury verdict:

"There may be cases where the facts adduced as to the existence and impact of an accused's mental condition may be so overwhelming as to require a judge to conclude that no reasonable juror could entertain a reasonable doubt. But in view of the complicated nature of the decision to be made-intertwining moral, legal, and medical judgments-it will require an unusually strong showing to induce us to reverse a conviction because the judge left the critical issue of criminal responsibility with the jury." King v. United States, 125 U.S.App.D.C. 318, 324, 372 F.2d 383, 389 (1967) (footnote omitted).

Burks v. United States, 437 U.S. at 17...