U.S. v. Bruner
| Decision Date | 29 July 1981 |
| Docket Number | Nos. 79-1769,s. 79-1769 |
| Citation | 657 F.2d 1278,212 U.S.App.D.C. 36 |
| Parties | , 8 Fed. R. Evid. Serv. 1573 UNITED STATES of America v. John W. BRUNER, aka Sweetmeat, Appellant. UNITED STATES of America v. Theresa LUCAS, aka Theresa Brooks, Appellant. UNITED STATES of America v. Thomas McCLOUD, aka Mr. Wonderful, Appellant. UNITED STATES of America v. Myrtle M. LYNCH, aka Sister, Appellant. UNITED STATES of America v. Milton BATTLE, Appellant. UNITED STATES of America v. Emma Jean WARD, Appellant. UNITED STATES of America v. Carl L. LYNCH, aka Cobby, Appellant. UNITED STATES of America v. Emma Jean WARD, Appellant. to 79-1772, 79-1774, 79-1784, 79-1785 and 80-1773. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William H. Allen, Washington, D. C. (appointed by this Court) with whom David G. Levere, Washington, D. C., was on the brief for appellant, Carl Lynch in No. 79-1785.
Steven C. Roat * and Larry J. Ritchie, Washington, D. C. (appointed by this Court) for appellant, E. Ward in Nos. 79-1784 and 80-1773.
James H. Craddock, Washington, D. C. (appointed by this Court) for appellant, Battle in No. 79-1774.
Hamilton P. Fox, III, Washington, D. C. (appointed by this Court) for appellant, Bruner in No. 79-1769. Dennis M. O'Keefe, Washington, D. C., was on the brief for appellant, Bruner in No. 79-1769.
James Mitchell Jones, Washington, D. C. (appointed by this Court) for appellant, McCloud in No. 79-1771.
Diane Dildine, Washington, D. C. (appointed by this Court) for appellant, Lucas in No. 79-1770.
Michael S. Frisch, Washington, D. C. (appointed by this Court) for appellant, Myrtle Lynch in No. 79-1772.
H. Lowell Brown, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Charles J. Harkins, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief for appellee. John J. McDermott and Benjamine B. Sendor, Asst. U. S. Attys., Washington, D. C., also entered appearances for appellee.
Before ROBINSON, Chief Judge, MacKINNON, Circuit Judge, and JUNE L. GREEN, ** United States District Judge for the District of Columbia.
Opinion for the Court filed by Circuit Judge MacKINNON.
Following a four-month jury trial 1 on an indictment 2 charging unlawful distribution of a controlled substance, interstate travel in aid of a racketeering enterprise, and conspiracy to distribute narcotic drugs, the seven appellants were convicted. 3 Central to the charges was a six-year multi-state drug conspiracy centered in Washington, D. C.
This case involves the so-called "Fat Lady Conspiracy" which operated under the direction and control of Carl Lynch and a few trusted confederates. They sent groups of overweight women on a regular basis to Philadelphia and New York, and sporadically to Pittsburgh, Atlanta, Miami, and Birmingham. The object of the conspiracy was the acquisition and distribution of Preludin and Dilaudid. Escorted by "team leaders," these groups of women visited doctors in an endeavor to obtain prescriptions for Preludin, a drug prescribed to induce weight loss, and, by complaining of pain, to obtain prescriptions for the pain-reliever Dilaudid. Lynch and his team leaders provided housing for the women and maintained a fleet of automobiles to transport them to the doctors' offices. The team leaders paid for the visits to doctors and, after the women obtained prescriptions for the drugs, transported the women to pharmacies and paid to have the prescriptions filled. Each of the women was paid an amount for each prescription, usually twenty-five dollars. Once the prescriptions were filled, couriers would bring the drugs to Washington, where they were sold from various locations in the Washington metropolitan area by members of the conspiracy.
The conspiracy apparently began in Washington, D. C. in 1972. When Preludin became difficult to acquire in Washington, the conspirators began to look to other cities. In both Philadelphia and New York they discovered doctors who were willing to regularly prescribe large quantities of Preludin. In Philadelphia one doctor prescribed significant quantities to the same women several times a day. Another doctor there put one of the members of the conspiracy on his payroll. That doctor prescribed Preludin on the basis of cards on file in his office, without requiring a visit by the "patient." He was paid ten dollars per prescription. One witness testified that she delivered a single payment of $10,000 to this doctor from Carl Lynch. Both of these doctors died during the course of the conspiracy, but others took their places, operating in a similar fashion. One, Dr. Lee Hedson, was ultimately indicted. The Philadelphia network was active up to the time the grand jury returned the indictment. The operation of the conspiracy in New York City followed a similar pattern. Two doctors who participated actively in the conspiracy, Dr. Gus Bashien and Dr. Alfred Calfon, were indicted.
John Bruner and Carl Lynch make three assertions of error based on the admission into evidence of approximately 5,000 prescriptions and other documents obtained from the offices of Dr. Gus Bashien. First, they argue that the prescriptions were improperly authenticated. Second, they argue that they were denied their Sixth Amendment rights to confront a witness against them. Third, Lynch contends that the prescriptions were inadmissible hearsay.
It is the Government's position that the prescriptions were properly admitted. It argues first that the prescriptions were not hearsay and, that even if they were, they were properly admitted under the business records exception. The Government points to the testimony of George Ginsberg, a pharmacist for the State of New York, and Margaret Brophy, a Drug Enforcement Administration investigator, as sufficiently authenticating the documents and as providing the necessary information to support the business records exception. Finally, the Government argues that the documents were properly admitted, although the preparer of documents did not testify, because the reliability and trustworthiness of the documents were otherwise established.
Testimony of the author is but one way to authenticate documents; circumstantial evidence of authenticity can be sufficient. McCormick on Evidence § 222 (2d ed. 1972). Here, the testimony given by Ginsberg and Brophy adequately authenticated the prescriptions. Ginsberg testified that under New York law, N.Y.Pub. Health Law § 3338 (McKinney), physicians must write prescriptions on state-issued triplicate forms, one copy of which is retained by the doctor on all prescriptions for Schedule II drugs. 4 Transcript (Tr.) at 346-64. He testified that he was responsible for maintaining the state's stock of blank prescription pads and the copies of filled prescriptions sent to the state by pharmacists. 5 Brophy identified the prescriptions offered in evidence as those obtained by her from Dr. Bashien pursuant to subpoena. Finally, Ginsberg testified that the seized prescriptions matched the numbers of the prescriptions which had been issued to Dr. Bashien, with but two exceptions. 6
"(P)roof of private custody, together with other circumstances, is frequently strong circumstantial evidence of authenticity." McCormick on Evidence § 224 (2d ed. 1972). Accord, United States v. King, 472 F.2d 1, 7-8 (9th Cir. 1972), cert. denied, 414 U.S. 1033, 94 S.Ct. 463, 38 L.Ed.2d 325 (1973). The "other circumstances" here include the method by which the State of New York issues and accounts for prescription blanks, as described by Ginsberg. This, when added to Brophy's testimony that the prescriptions were obtained from Dr. Bashien by subpoena, is substantial proof of authenticity, and is "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a).
These documents are hearsay only if they contain "statements ... offered in evidence to prove the truth of the matter asserted" and they are not "statement(s) by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(c), (d)(2)(E).
The prescriptions are divided into three sections. One section contains the name and address of the physician and the patient and the date the prescription is written. The second section is comprised of the name of the drug prescribed, the directions for its use, and the maximum daily dose. The third section is reserved for use by the pharmacist to enter information such as his and the drug's identification numbers and the date the drug is dispensed. Tr. at 350-51.
In our view, the prescriptions were not admitted to prove the truth of the assertions they contained, and are, therefore, not hearsay. They were not offered to prove Dr. Bashien's or any of his patients' addresses. 7 Nor were they offered to prove the doctor believed that the patient needed the drug prescribed, which is an assertion probably intended by the doctor when he wrote the prescriptions. They were offered in evidence to show they were used to obtain drugs.
The conclusion that the prescriptions were not hearsay is strengthened by a review of the rationale of the hearsay rule. "The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence." Anderson v. United States, 417 U.S. 211, 220, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974). Appellants' attack on the prescriptions is not directed at the veracity of the statements made or assertions implicit in them. They had no interest in putting Dr. Bashien's credibility in issue. Apparently, appellants' sole objection to the prescriptions dealt with their authenticity, which does not...
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