U.S. v. Ferguson, s. 84-2350

• Decision Date: 26 November 1985
• Docket Number: Nos. 84-2350,85-1588,s. 84-2350
• Citation: 776 F.2d 217
• Parties: 19 Fed. R. Evid. Serv. 840 UNITED STATES of America, Appellee, v. John S. FERGUSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 217

776 F.2d 217

19 Fed. R. Evid. Serv. 840

UNITED STATES of America, Appellee, v. John S. FERGUSON, Appellant.

Nos. 84-2350, 85-1588.

United States Court of Appeals,

Eighth Circuit.

Submitted June 10, 1985.

Decided Oct. 17, 1985.

Rehearing and Rehearing En Banc Denied Nov. 26, 1985.

Samuel A. Perroni, Little Rock, Ark., for appellant.

Robert J. Govar, Asst. U.S. Atty., Little Rock, Ark., for appellee.

Before ROSS, Circuit Judge, BRIGHT, Senior Circuit Judge, and NICHOL, ^* District Judge.

ROSS, Circuit Judge.

Appellant Dr. John S. Ferguson appeals from a final judgment entered in the district court ¹ for the Eastern District of Arkansas upon a jury verdict finding him guilty of filing a false statement with the Drug Enforcement Administration (DEA) in violation of 21 U.S.C. Sec. 843(a)(4)(A) ² and for knowingly and intentionally distributing a controlled substance, dilaudid, without any legitimate medical purpose in violation of 21 U.S.C. Sec. 843(a)(1). ³ We affirm.

Appellant was on inactive status as a physician in California and as a result was prohibited from practicing medicine or prescribing medication. In January of 1982, following a complaint that appellant had obtained dilaudid, an analgesic drug six times more potent than morphine, an investigator with the California Board of Medical Quality Assurance, Shirley Poe (Poe), contacted appellant to remind him that he was not authorized to write or prescribe medication. After a second complaint, Poe requested that appellant surrender his Controlled Substance Act (CSA) registration, a permit registered with the DEA which allows medical doctors and other certified persons to legally handle controlled substances.

On August 18, 1982, appellant signed a document agreeing to surrender his CSA registration and delivered a CSA registration to Poe. Poe discovered, however, that appellant had submitted a previously expired CSA registration and, after requesting appellant's current registration, Poe was told by appellant that his current registration had been destroyed. Poe then requested and received a written statement from appellant stating that his current registration had been destroyed.

Appellant thereafter moved to Arkansas and on August 26, 1983, applied to the DEA to renew his CSA registration. On his application, appellant was asked whether he had "ever surrendered a previous CSA registration or had a CSA registration revoked, suspended or denied, other than for a change of location or entrance into military service," to which appellant answered "No." On May 22, 1984, the Federal Grand Jury for the Eastern District of Arkansas returned a one-count indictment against appellant charging him with filing a false statement to the DEA in connection with his application for renewal of a CSA registration in violation of 21 U.S.C. Sec. 843(a)(4)(A). On August 20, 1984, a superceding indictment was issued and a charge of knowingly and intentionally distributing dilaudid without any legitimate medical purpose was added as a second count.

Count II of the indictment alleged that between May 2, 1981, and June 23, 1983, appellant injected his former spouse Marilyn Ferguson Martin (Marilyn Martin) with dilaudid and that, on at least one occasion, the injection was forced upon her. Marilyn Martin's sisters, Donna Martin and Vicki Wyatt testified that they witnessed appellant administer injections to Marilyn Martin. Donna Martin testified that on one occasion she observed appellant giving an injection to Marilyn Martin while she was unconscious. On June 21, 1983, Marilyn Martin was admitted to a Little Rock hospital in a comatose and critical condition. According to her treating physician, Dr. William Granger, large quantities of narcotic drugs were found in her body.

Prior to trial, the district court granted the government's motion in limine to prohibit defense counsel from impeaching Marilyn Martin concerning her prior convictions for attempting to obtain, and for obtaining, controlled substances by fraud. Pursuant to an Arkansas expungement statute, Marilyn Martin's record was expunged and a certificate of expungement, signed by a Pulaski County Circuit Judge, was issued to her.

Appellant filed two pretrial motions, one for relief from prejudicial joinder, and the second to exclude evidence of other crimes and bad acts of the appellant. Both motions were denied by the district court. Trial was held on September 18, 1984, and on September 20, 1984, the jury returned a verdict of guilty on both counts of the indictment. Appellant was sentenced to two years imprisonment on count II and three years probation as to count I, probation commencing upon appellant's release from imprisonment. From this conviction, appellant appeals on eight separate grounds.

I. Speedy Trial Act

Appellant argues that his convictions should be reversed and the indictment against him dismissed due to a violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(2), which provides:

Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.

Appellant was tried less than 30 days after the superceding indictment and argues that a violation under this provision of the Speedy Trial Act is "inadequate per se" and constitutes plain and reversible error, at least to count II of the superceding indictment. Appellant cites three Ninth Circuit cases in support of his position. United States v. Harris, 724 F.2d 1452, 1455 (9th Cir.1984); United States v. Daly 716 F.2d 1499, 1504-05 (9th Cir.1983), cert. denied, 465 U.S. 1075, 104 U.S. 1456, 79 L.Ed.2d 773 (1984); United States v. Arkus, 675 F.2d 245, 248 (9th Cir.1982).

This court has held that failure to raise an objection for violation under the Speedy Trial Act constitutes a waiver. United States v. Little, 567 F.2d 346, 349 (8th Cir.1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1608, 56 L.Ed.2d 60 (1978). Because appellant failed to raise any objection to the trial court, appellant effectively waived his rights under the Speedy Trial Act. ⁴

II. Impeachment Evidence of Prior Crimes

Rule 609 of the Federal Rules of Evidence provides in pertinent part:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination * * * .

* * *

* * *

(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted * * * .

Appellant argues that the expungement certificate signed by the Circuit Judge of Pulaski County was invalid because the government did not offer any evidence that the Director of the Arkansas Department of Correction took any action regarding the expungement. ⁵ Alternatively, appellant argues that the Arkansas expungement statute violates his constitutional right under the sixth amendment to confront witnesses brought against him. Both of these arguments are without merit.

The trial court is granted broad discretion in limiting the scope of the cross-examination of a witness. FED.R.EVID. 611(b); United States v. Lee, 743 F.2d 1240, 1249 (8th Cir.1984). This discretion includes determining whether under FED.R.EVID. 609(c) there is sufficient evidence to expunge prior convictions. United States v. Thorne, 547 F.2d 56, 59 (8th Cir.1976). In the instant case, the evidence consisted of an order of expungement signed by a Pulaski County Circuit Court judge. It was not an abuse of discretion for the trial court to conclude that the order of the Pulaski County Circuit Court Judge was sufficient evidence to satisfy FED.R.EVID. 609(c).

As for appellant's claim that the Arkansas expungement statute denies him his sixth amendment right to confront witnesses, it should first be noted that cross-examination of a witness as to prior convictions is not an absolute right to a criminal defendant in all cases:

[The United States Supreme Court has neither held nor suggested] that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past * * * criminal convictions.

Davis v. Alaska, 415 U.S. 308, 321, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347 (1974) (Stewart, J., concurring).

A violation of the confrontation clause occurs only where the limitation on the cross-examination could reasonably be expected to have a substantial effect on the jury's decision. United States v. Farnsworth, 729 F.2d 1158, 1162 (8th Cir.1984). In the instant case, appellant was allowed to question, and did so question, Marilyn Martin as to the underlying facts of her prior convictions for fraud. Appellant was, therefore, afforded at least some opportunity to impair Marilyn Martin's credibility and to bolster his defense. United States v. Witschner, 624 F.2d 840, 844-45 (8th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 291 (1980). Under these circumstances, appellant was not denied his sixth amendment right to confront witnesses.

III. Void For Vagueness

Appellant argues that the question on the application for renewal of his CSA registration which asked whether he had ever "surrendered" a previous CSA registration is unconstitutionally vague and cannot form the basis for his conviction under 21 U.S.C. Sec. 843(a)(4)(A). Appellant argues that because the application did not ask whether appellant's relinquishment of his prior CSA registration was "voluntary" the question was unconstitutionally vague. Because this issue was not raised below, appellant's constitutional challenge is not cognizable on appeal unless it...