U.S. v. Bridwell

• Decision Date: 11 September 1978
• Docket Number: 77-1320 and 77-1430,Nos. 77-1310,s. 77-1310
• Citation: 583 F.2d 1135
• Parties: 3 Fed. R. Evid. Serv. 628 UNITED STATES of America, Plaintiff-Appellee, v. Malcolm Edward BRIDWELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gregory G. SCHWAB, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Susan Anita BOYD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1135

583 F.2d 1135

3 Fed. R. Evid. Serv. 628

UNITED STATES of America, Plaintiff-Appellee, v. Malcolm Edward BRIDWELL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gregory G. SCHWAB, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Susan Anita BOYD, Defendant-Appellant.

Nos. 77-1310, 77-1320 and 77-1430.

United States Court of Appeals Tenth Circuit.

Sept. 11, 1978.

C. Merle Gile, Oklahoma City, Okl. (D. C. Thomas, Oklahoma City, Okl., on brief), for defendant-appellant Bridwell.

William P. Johnson, Denver, Colo., for defendant-appellant Schwab.

George Miskovsky, Jr., Miskovsky, Sullivan & Miskovsky, Oklahoma City, Okl. (John Paul Johnson, Oklahoma City, Okl., with him on brief), for defendant-appellant Boyd.

John E. Green, Asst. U. S. Atty., Oklahoma City, Okl. (Larry D. Patton, U. S. Atty., Oklahoma City, Okl., on brief), for plaintiff-appellee.

Before SETH, Chief Judge, and LEWIS and DOYLE, Circuit Judges.

LEWIS, Circuit Judge.

In this consolidated criminal case, defendants appeal from judgments of conviction entered on jury verdicts of guilty. Defendants were indicted in the Western District of Oklahoma for conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 846. In addition to the one conspiracy count, defendant Bridwell was indicted on 17 counts of distributing controlled substances (Id. § 841(a)(1)), and 13 counts of failing to maintain accurate records of dispensation of controlled substances. Id. § 842(a)(5). As stated above, the jury returned verdicts of guilty as to all defendants on all charges.

The basis for the conspiracy and substantive charges was a scheme initiated by Malcolm Bridwell, a physician, to sell various drugs illegally. Viewing the evidence in a light most favorable to the government, as we must, the testimony indicated that the scheme began with Bridwell writing prescriptions for a co-conspirator who would have them filled and then resell the drugs for profit. When local pharmacists became reluctant to fill the numerous prescriptions, Bridwell began ordering the drugs direct from the manufacturers and again reselling them for profit largely through one main co-conspirator. This co-conspirator, Roger Battershell, was granted immunity from prosecution and testified that he repeatedly sold the drugs to defendant Schwab who apparently received the purchase money from his cousin defendant Boyd. After the above arrangement was in existence for about a year, federal and state narcotics agents became suspicious of Bridwell and obtained a warrant to inspect his records. The inspection showed that Bridwell had ordered about 342,000 dosage units of various drugs, of which almost 300,000 were unaccounted for.

On appeal defendants raise numerous issues, some jointly and some individually. Bridwell first asserts that his privilege against self-incrimination was violated. The first aspect of this argument relates to questioning of Bridwell in his office during the audit of his records. The audit was in progress most of the day and while it was going on Bridwell was seeing patients and performing, as much as possible, his normal activities. He complains now because he was not given the Miranda warnings prior to questioning and because certain inculpatory answers were admitted at trial.

We think it quite clear there was no error on this point. It is well settled that the Miranda warnings are required only when the suspect "has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694. The Supreme Court has elaborated on this requirement in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (per curiam) and Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1. Beckwith is particularly relevant here because Bridwell argues he was the "focus of investigation" and was under "mental restraint," thereby fulfilling Miranda's in-custody requirement. Beckwith rejected both these arguments. 425 U.S. at 345, 96 S.Ct. 1612. In this case Bridwell was questioned in his own office, was not under arrest, and no other indicia of coercion are apparent. Beckwith v. United States, supra. Accordingly, Miranda warnings were not required and the answers given by defendant were properly admitted at trial.

Bridwell further argues that his privilege against self-incrimination was violated by testimony of a government agent that Bridwell had refused to sign a waiver of his Miranda rights. The testimony was as follows:

Q. Did you give him any other instructions in regard to that piece of paper?

A. Yes, sir, I did.

Q. What?

A. I asked him if he would sign a waiver of his rights.

Q. And what happened?

A. He refused to.

Defendant's counsel immediately objected to the testimony and the objection was sustained. The court instructed the jury to disregard the testimony. After this cautionary instruction the prosecutor continued.

Q. What did you do at that point?

A. At that time I asked Dr. Bridwell if he would like to tell us what he had done with the drugs.

Q. From that time forward did he tell you any more?

A. No, sir, he did not.

We agree that the above questions and answers constituted a clear infringement on defendant's privilege against self-incrimination. See, e. g., Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91; United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99; Johnson v. Patterson, 10 Cir., 475 F.2d 1066, Cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124. Defendant's refusal to waive his Miranda rights and his silence in reliance on these rights may not be used by the prosecutor to support an inference of guilt. See Doyle v. Ohio, supra, 426 U.S. at 616-17, 96 S.Ct. 2240. Such use constitutes an impermissible penalty on the exercise of those rights. See Johnson v. Patterson, supra, at 1068.

The government concedes error on this point but argues that, in view of the overwhelming evidence against Bridwell, the error was harmless beyond a reasonable doubt. We note that under similar facts, where the reference to defendant's silence was brief and isolated, this and other circuits have accepted this argument. E. g., United States v. King, 10 Cir., 485 F.2d 353, 360; Hayton v. Egeler, 6 Cir., 555 F.2d 599, 603, Cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463; Chapman v. United States, 5 Cir., 547 F.2d 1240, 1248, Cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393; Jones v. Wyrick, 8 Cir., 542 F.2d 1013, Cert. denied, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 807. Although we do not retreat from our concern over the seriousness of the error at trial, a careful review of the record convinces us that the error was indeed harmless beyond a reasonable doubt. Our conclusion is based on the relatively brief reference in the context of a four-day trial, on the fact that the court immediately instructed the jury to disregard the testimony, and on the volume of other incriminating evidence.

Defendant Bridwell also claims the prosecutor commented in closing argument on his failure to testify. ¹ The district court rejected Bridwell's mistrial motion, stating that the reference was to what defendant's counsel had said, not to any action by Bridwell. We agree. The language used was not "manifestly intended or . . . of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Walton, 10 Cir., 552 F.2d 1354, 1362, Cert. denied, 431 U.S. 959, 97 S.Ct. 2685, 53 L.Ed.2d 277. ²

Switching to another aspect of this prosecution, Bridwell argues the evidence seized in the inspection of his office should have been suppressed because the administrative search warrant was invalid. The alleged invalidity is premised on the fact that the warrant was issued to, and served by, a state narcotics agent who was not "a person authorized . . . to execute it" under21 U.S.C. §§ 880(d)(2), 880(b)(2). ³ Defendant's motion to suppress on this ground was never ruled on by the district court, though the court did express the opinion that the motion was untimely under Fed.R.Crim.P. 12(b). ⁴ That rule provides that motions to suppress evidence must be made pretrial. Rule 12(f) further provides that the failure to make the motion at the proper time constitutes waiver. See also Mesmer v. United States, 10 Cir., 405 F.2d 316. Defendant's motion to suppress was filed in open court on the second day of trial. We find unpersuasive counsel's claim that he had only recently learned the evidence would be used. Thirteen of the 31 counts on which defendant was indicted charged failure to maintain adequate records of controlled substances. It is difficult to accept that defendant was surprised by the use of his office records to support these charges. The motion to suppress was waived by untimely filing and may not now be asserted on appeal. See United States v. Wood, 9 Cir., 550 F.2d 435, 439-40.

The remaining contentions of error are raised by defendant Bridwell jointly with the other defendants. The first claim is that the district court erred in admitting evidence of misconduct under Fed.R.Evid. 404(b). The evidence consisted of testimony by four police officers indicating that defendants Schwab and Boyd had illegally purchased a large amount of drugs from the unindicted co-conspirator in this case. The buy took place after defendant Bridwell was arrested and concededly after the conspiracy charged in this prosecution had terminated. All defendants argue the evidence was highly prejudicial, had minimal probative value, and was unaccompanied by a limiting instruction on its use. ⁵ Although we believe the volume of testimony admitted on the separate offense approaches the outer limits of permissible use of rule 404(b) evidence, we are not persuaded that reversal is required.

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