U.S. v. DeBoer, 91-2013

• Decision Date: 09 June 1992
• Docket Number: No. 91-2013,91-2013
• Citation: 966 F.2d 1066
• Parties: 35 Fed. R. Evid. Serv. 1322 UNITED STATES of America, Plaintiff-Appellee, v. Michael DeBOER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1066

966 F.2d 1066

35 Fed. R. Evid. Serv. 1322

UNITED STATES of America, Plaintiff-Appellee, v. Michael DeBOER, Defendant-Appellant.

No. 91-2013.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 6, 1992.

Decided June 9, 1992.

Richard S. Murray, Asst. U.S. Atty. (argued), John A. Smietanka, U.S. Atty., Office of the U.S. Atty., Grand Rapids, Mich., for U.S.

Norman C. Halbower (argued), Muskegon, Mich., for DeBoer.

Before: NELSON and BOGGS, Circuit Judges; and KRUPANSKY, Senior Circuit Judge.

KRUPANSKY, Senior Circuit Judge.

Appellant, Michael DeBoer (defendant), appealed the district court's judgment finding him guilty of one count of conspiracy to distribute and aid and abet in the distribution of Tussend, a Schedule III controlled substance pursuant to 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1).

On October 25, 1990, the grand jury indicted the defendant on one count of conspiracy to distribute the cough syrup Tussend, a Schedule III controlled substance. The defendant worked at a drug store which was owned and operated by him and his parents. He functioned as both a manager and a pharmacy technician. His pharmaceutical duties included packaging the cough syrup, Tussend, into measured containers for sale to the public, as well as ordering drugs from wholesale suppliers. Occasionally, he filled prescriptions for customers when the pharmacists were either ill or late for work.

A jury trial commenced on June 17, 1991, in which the defendant was to be tried with three co-defendants. After the jury was selected, but before the commencement of the trial, two of the co-defendants pleaded guilty and the charges against a third defendant were dismissed. Before the government commenced its presentation of evidence against the defendant on June 18, 1991, without defense objection, the court instructed the jury not to draw any inferences from the absence of the remaining co-defendants from the trial. The instruction was legally proper and correct.

At trial, employees, including a registered pharmacist, testified that Dr. Anthony Bergren (Bergren), a practicing medical doctor, prescribed eighty percent of the store's controlled substance prescriptions. They further testified that they were aware through customers that many pharmacists and pharmacies in the vicinity and elsewhere refused to honor Bergren's prescriptions. Furthermore, relief pharmacist, Floyd Rademacher (Rademacher), testified that the pharmacy's practices regarding Tussend prescriptions were outside the usual course of professional conduct. Specifically, he testified that Tussend was a cough syrup rarely used by physicians because it was three times more powerful than a codeine cough medicine. He stated that a normal pharmacy would fill three or four prescriptions for the drug per week during peak flu season as compared to the eleven or more Tussend prescriptions per day that were filled at defendant's pharmacy.

Further, the United States offered undisputed evidence that defendant's drug store received quantity shipments of Tussend from wholesalers from December, 1986 through November, 1988. The evidence disclosed that during this two year period, the said pharmacy received 3,902 sixteen ounce bottles of Tussend from three wholesalers, enough Tussend to fill 21 prescriptions every day for two years.

The United States also offered into evidence all the controlled substance prescriptions filled at the pharmacy during 1987, as well as summaries of that evidence. DEA agent, Karen Mysliewic (Mysliewic) testified over objection that from her calculations defendant's pharmacy filled an average of eleven Tussend prescriptions per day. The court overruled the objection and, as a cautionary measure, instructed the jury not to treat summaries as evidence and to disregard the summaries if they did not accurately reflect the facts and figures developed by the evidence.

Following the close of trial, the court requested that counsel jointly draft jury instructions. When the court charged the jury, it read 21 U.S.C. § 846 and § 841(a)(1) into the record, as well as a definition of "to distribute," and explained the pharmacist/physician exemption from liability and the elements of a conspiracy.

Thereafter, the court dismissed the jury to deliberate, without discharging the alternate juror. Three minutes after the jury retired to commence deliberations, the judge dismissed the alternate juror. The defendant did not object to the court's oversight, nor did he request that the judge interrogate the jurors to determine whether the alternate juror participated in or influenced any deliberations or whether deliberations had even commenced.

In his first assignment of error, the defendant contended that the court committed plain error in its instruction to the jury concerning the "good faith" defense. In the instant action, the judge reviewed with the jury the provisions of 21 U.S.C. § 841(a)(1) and further instructed them that physicians and pharmacists were exempt from liability if they distributed controlled substances in the usual course of business pursuant to 21 C.F.R. § 1306.04. These instructions effectively informed the jury of the good faith defense. United States v. Carroll, 518 F.2d 187 (6th Cir.1975) (citing White v. United States, 399 F.2d 813, 816-17 (8th Cir.1968)). Accordingly, this assignment of error is without merit.

The defendant's second assignment of error is equally without merit. He argued that the court committed plain error when it did not instruct the jury on the elements of distribution of a controlled substance pursuant to 21 U.S.C. § 841(a)(1) and the burden of proof required for each element. However, this Circuit has recently decided an identical case in which it concluded that the district court's failure to instruct the jury on definitions of "distribution," "possession," and "intent" was not plain error when it gave detailed instructions on the elements of a conspiracy. United States v. Gordon, 936 F.2d 573 (...