U.S. v. Daniel, No. 92-5518

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN; PHILLIPS
Citation3 F.3d 775
PartiesUNITED STATES of America, Plaintiff-Appellee, v. George C. DANIEL, Defendant-Appellant.
Decision Date14 September 1993
Docket NumberNo. 92-5518

Page 775

3 F.3d 775
UNITED STATES of America, Plaintiff-Appellee,
v.
George C. DANIEL, Defendant-Appellant.
No. 92-5518.
United States Court of Appeals,
Fourth Circuit.
Argued July 15, 1993.
Decided Sept. 1, 1993.
Amended by Order Filed Sept. 14, 1993.

Page 776

William Kevin Reynolds, Annapolis, MD, argued (Bruce C. Bereano, on brief), for defendant-appellant.

Harvey Ellis Eisenberg, Executive Asst. U.S. Atty., Baltimore, MD, argued (Gary P. Jordan, U.S. Atty., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.

OPINION

PHILLIPS, Circuit Judge:

George Daniel appeals four convictions for unlawfully attempting to dispense or distribute controlled substances and the sentence accordingly imposed. Finding no reversible errors, we affirm the convictions and sentence, remanding however for correction of an administrative error in sentencing.

I

Alex Dower, a long-time drug abuser, alerted the Drug Enforcement Administration (DEA) to his purchases of prescriptions for controlled substances from Dr. George C. Daniel after becoming annoyed with Daniel's refusal to extend his line of credit. The government then used Dower to set up a meeting of Daniel and Darren Wolpert, a DEA undercover agent who posed as Dower's brother Robert. At a meeting that

Page 777

formed the basis for Count One of Daniel's indictment, Wolpert and Dower met Daniel, who wrote a prescription for Percodan Wolpert requested within three minutes and without any physical examination. While Daniel initially expressed a desire to prescribe Tylenol III (also a controlled substance), he acquiesced immediately when Wolpert said he wanted Percodan. Wolpert paid off Dower's $275 debt to Daniel (this was the government's only payment to Dower) and gave Daniel an additional $75.

Ten days later Wolpert contacted Daniel directly. Within six minutes of meeting Daniel for the two transactions charged in Counts Two and Three of his indictment, Wolpert had acquired two more prescriptions he'd requested: Percodan for himself and Dilaudid for a person Daniel hadn't met, Bill McCallam (a.k.a. DEA Special Agent William Callahan). Again Wolpert wasn't examined. Wolpert paid Daniel $100 for each of the two prescriptions.

Wolpert and another undercover DEA agent, Angela Stone, met Daniel at his office a few days later to conduct the transactions charged in Counts Four through Seven of Daniel's indictment. By then confident that Daniel wouldn't examine him, Wolpert wore a recording device. In fifteen minutes Daniel sold Wolpert four requested prescriptions: Percodan for Robert Dower, Dilaudid for Bill McCallam (who still hadn't met Daniel), Demerol for Alex Dower (who wasn't present), and Dilaudid for Angela Steinhart (a.k.a. Agent Stone). Once again, Daniel conducted no exams and took no medical histories. Though he asked Stone about the nature of her medical problem, he seemed unconcerned when she replied simply that Dilaudid helped her feel better and she liked the way it made her feel. Wolpert reassured him that Stone was all right, that he'd "been with her for a while," and Daniel wrote the prescription. Wolpert paid Daniel $300 and Stone paid him $100. During the encounter, Daniel cautioned Wolpert and Stone to use different pharmacies to fill the various prescriptions and made other statements about avoiding DEA scrutiny.

Counts Eight through Eleven of Daniel's indictment arose from Daniel's recorded encounter twenty-two days later with Agent Callahan. Acting alone, Callahan purchased four prescriptions for $400 in twelve minutes, without medical attention of any kind, for Bill McCallam, Robert Dower, Ernie Staples, and Jerry Campbell. Daniel had never met the imaginary Staples and Campbell. He warned Callahan to fill the prescriptions at different pharmacies.

In 1987 Daniel was indicted by a federal grand jury in the District of Maryland on eleven counts of unlawfully attempting to dispense controlled substances. 21 U.S.C. Secs. 841(a)(1), 846. After agreeing to plead guilty to one of those counts, Daniel became a fugitive from justice until his arrest three and a half years and thirty-one countries later in Hawaii. In May, 1992 he was tried to a jury in the District of Maryland, which found him guilty on Counts Five, Six, Seven, and Ten, but acquitted him on Counts One and Two and hung on Counts Three, Four, Eight, Nine, and Eleven. The district court declared a mistrial on the hung counts and the United States dismissed them with leave of the court.

The district court then sentenced Daniel to concurrent 52 month sentences on each count. The sentences are pre-Guidelines and Daniel will be eligible for parole.

Daniel appealed, pressing a number of claimed errors. In essence, he (1) challenges the sufficiency of his indictment, (2) alleges that he was unlawfully entrapped and wrongfully prevented from arguing that to the jury, (3) contends that his counsel was constitutionally ineffective, and (4) notes a number of objections to his sentencing. In Parts II through V of the opinion we address this multitude of claims, taking them in the order noted above.

II

Daniel unsuccessfully challenged his indictment below and renews that challenge here. Each count of his indictment charged that

George C. Daniel, M.D. [,] being a registrant authorized to dispense controlled substances for legitimate medical purposes, did knowingly and intentionally unlawfully

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attempt to dispense or distribute a quantity of a Schedule II Controlled Substance ...; said attempt not being for a legitimate medical purpose.

Daniel contends that this charge failed to include certain essential elements of the relevant offense, a violation of 21 U.S.C. Sec. 841(a)(1), and was thus fatally flawed. The elements claimed to be missing are (1) action outside the usual course of medical practice, (2) action not in good faith and proper accordance with a standard of medical practice generally recognized and accepted in the United States, and (3) action by a practicing physician. For the reasons below, we find the indictment sufficient.

Daniel was charged under the relevant attempt statute, 21 U.S.C. Sec. 846, for attempts to commit the substantive offense proscribed by 21 U.S.C. Sec. 841(a)(1):

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally to ... distribute[ ] or dispense[ ] a controlled substance ...

Section 822(b) of the relevant subchapter authorizes distribution and dispensation by registrants like Daniel "to the extent authorized by their registration and in conformity with the other provisions of this subchapter." In United States v. Moore, 423 U.S. 122, 140, 96 S.Ct. 335, 344, 46 L.Ed.2d 333 (1975), the Supreme Court limited this authority to distributions and dispensations in the lawful...

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56 practice notes
  • United States v. Bryant, Criminal Case No. 3:04cr00047-1
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • January 31, 2013
    ...a result of counsel's vigorous advocacy, Bryant was acquitted on some of the counts with which he was charged. See United States v. Daniel, 3 F.3d 775, 779 (4th Cir. 1993) (rejecting ineffectiveness claim where counsel obtained acquittals on some counts and deadlock on others). The fact tha......
  • United States v. Jackson, No. 2:10–CR–8–FL.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 4, 2013
    ...to distribute or dispense, (2) a substance known to be controlled (3) in a way not authorized by this subchapter.” United States v. Daniel, 3 F.3d 775, 778 (4th Cir.1993) (emphasis added). Thus, an indictment must allege that “the attempted distributions or dispensations were ‘not for a leg......
  • United States v. Rafiekian, No. 19-4803
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 18, 2021
    ...to the Attorney General ... shall be fined ... or imprisoned not more than ten years, or both." Accord United States v. Daniel , 3 F.3d 775, 778 (4th Cir. 1993) (construing an exception in a substantive offense provision as an element).20 Our review is limited to the evidence presented......
  • United States v. Lindberg, Docket No. 5:19-CR-00022-MOC-DSC
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • August 4, 2020
    ..."more than a scintilla of evidence that the government induced him to commit the charged offense." United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993). If the defendant meets this burden, the Government must then prove beyond a reasonable doubt that the defendant was predispo......
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56 cases
  • United States v. Bryant, Criminal Case No. 3:04cr00047-1
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • January 31, 2013
    ...a result of counsel's vigorous advocacy, Bryant was acquitted on some of the counts with which he was charged. See United States v. Daniel, 3 F.3d 775, 779 (4th Cir. 1993) (rejecting ineffectiveness claim where counsel obtained acquittals on some counts and deadlock on others). The fact tha......
  • United States v. Jackson, No. 2:10–CR–8–FL.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 4, 2013
    ...to distribute or dispense, (2) a substance known to be controlled (3) in a way not authorized by this subchapter.” United States v. Daniel, 3 F.3d 775, 778 (4th Cir.1993) (emphasis added). Thus, an indictment must allege that “the attempted distributions or dispensations were ‘not for a leg......
  • Umar v. United States, Criminal No.: 2:10cr56
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 2, 2015
    ...under Rule 29 falls within the realm of strategic choices that a court must hesitate to second guess. See United States v. Daniel , 3 F.3d 775, 779 (4th Cir.1993) ; United States v. Mayberry , 341 Fed.Appx. 859, 862 (4th Cir.2009) (unpublished). In this case, other than his conclusory asser......
  • Beyle v. United States, CIVIL ACTION NO. 2:16cv603
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • September 1, 2017
    ...Somali origin was a reasonable strategic decision based on their "sound evaluation of ... likelihood of success." United States v. Daniel, 3 F.3d 775, 779 (4th Cir. 1993). For that reason, the Petitioner cannot demonstrate that his trial counsel's conduct was deficient under Strickland. Add......
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