U.S. v. Greenfield

Decision Date16 June 1977
Docket NumberNo. 76-2604,76-2604
Citation554 F.2d 179
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Russell GREENFIELD, M.D., Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

James Jerry Wood, Montgomery, Ala., for defendant-appellant.

Ira DeMent, U. S. Atty., Milton L. Moss, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before GOLDBERG and HILL, Circuit Judges, and KERR, * District Judge.

HILL, Circuit Judge:

The defendant, Dr. William Russell Greenfield, was indicted in a ten count indictment returned by a federal grand jury in the Middle District of Alabama on April 8, 1976. The ten count indictment charged in each count a violation of 21 U.S.C.A. § 841(a)(1). 1 After a two-day trial the jury returned guilty verdicts on three counts. The defendant was sentenced to the custody of the Attorney General for a period of two years and to a two year special parole term.

The first witness for the government was Terry Conner, an undercover investigator for the Alabama Division Investigative Unit. Ms. Conner first went to Dr. Greenfield's office on October 16, 1975, using the name "Linda Thornton." Ms. Conner told Dr. Greenfield that she needed something to help her stay awake at night while she worked and that she had to baby-sit in the daytime for her sister's children. She obtained a prescription for thirty-six five milligram Dexedrine after her temperature, blood pressure, pulse and weight had been checked. She was asked for a urine sample but could not produce one. Dr. Greenfield told Ms. Conner that she should not abuse the pills and should not give them away or sell them to her friends. Ms. Conner was charged $10.00 for this initial visit.

On October 30, 1975, after her weight and blood pressure were checked, Ms. Conner received a prescription for twenty-four Dexedrine. On November 13, 1975, Ms. Conner told Dr. Greenfield that she did not like the last prescription that he had written for her. After checking her weight and blood pressure, Dr. Greenfield prescribed fifty Dexamyl tablets.

One week later, on November 20, 1975, Ms. Conner returned to Dr. Greenfield's office and told him that the last prescription had made her sick. Dr. Greenfield told her that he could not write her another prescription so soon and asked Ms. Conner for the name of a girl friend. She suggested the name "Kathy Kane" and Dr. Greenfield wrote a prescription for thirty-six Dexedrine in the name of "Kathy King."

On December 3, 1975, Ms. Conner received a prescription for fifty Dexedrine with the admonition that she should learn On January 15, 1976, Ms. Conner returned to Dr. Greenfield and stated that she needed a refill for her last prescription. Dr. Greenfield told her that she "was taking too many pills" but that he would prescribe Ionamin because it was a schedule IV drug and "he couldn't get in trouble for them." (Tr. at 41). She received a prescription for twenty-four Ionamin which Dr. Greenfield told her she could share with her friends.

to count. On January 6, 1976, after her blood pressure was checked, Ms. Conner received another prescription for fifty Dexedrine, although she did not personally see Dr. Greenfield.

One week later Ms. Conner told Dr. Greenfield that her prescription was gone. Dr. Greenfield stated that he could not give her another prescription. When Ms. Conner stated that her sister "Terry Carter" had been taking the pills, Dr. Greenfield wrote a prescription in the name of "Terry Carter" for thirty-six Ionamin.

On February 11, 1976, Dr. Greenfield prescribed thirty-six Ionamin for Ms. Conner without seeing her. On March 11, 1976, Ms. Conner received a prescription for one hundred Dexedrine. Finally, on March 25, 1976, Ms. Conner obtained a prescription for thirty Ionamin. The government then introduced tapes of conversations recorded on five of Ms. Conner's visits to Dr. Greenfield's office.

The government last called Dr. Jesse Samuel Griffith, a flight surgeon stationed at Fort Rucker, Alabama. He testified to the importance of thorough medical histories when prescribing drugs and gave his opinion that the prescriptions of drugs upon the facts stated by Ms. Conner would not be proper. Dr. Griffith also testified that it would not be proper medical practice to write prescriptions in the names of fictitious persons.

The defense presented fourteen witnesses, including six physicians. Each physician testified that Dr. Greenfield's reputation as a doctor was excellent and that the prescriptions to Ms. Conner were appropriate under the circumstances. However, most of the physicians indicated that it was improper to write a prescription in a name other than the patient's. The defense then called seven witnesses who testified to Dr. Greenfield's good reputation in the community. Dr. Greenfield was called as the last defense witness. He testified that his treatment of Ms. Conner was typical of the way that he practiced and that he felt that there was a legitimate medical reason for prescribing the drugs for her. The jury convicted the defendant for the prescriptions written on January 15, January 22, and February 11, 1976. While we are convinced that the evidence is sufficient to sustain the jury's verdict, we reverse on the issue of entrapment.

ENTRAPMENT

The defendant asserts that the evidence in this case established entrapment as a matter of law, or, at the very least, entitled him to have the issue of entrapment submitted to the jury. The defense proffered four charges on entrapment. The trial court refused to charge on entrapment on the ground that the "entrapment defense is not available until the defendant admits the commission of the crime." (Tr. at 333). We agree with the defendant that he was entitled to raise the defense of entrapment under the peculiar circumstances of this case. Of course, whether the defendant is entitled to have the issue of entrapment submitted to the jury will depend upon the evidence adduced at his retrial.

The government correctly notes the existence of a veritable legion of opinion in this circuit forbidding a defendant from pleading entrapment and at the same time denying the very acts upon which the prosecution is predicated. See e. g., United States v. Morrow, 537 F.2d 120, 138-139 (5th Cir. 1976); United States v. Ramirez, 533 F.2d 138 (5th Cir.), cert. denied, 429 U.S. 884, 97 S.Ct. 235, 50 L.Ed.2d 165 (1976); United States v. O'Leary, 529 F.2d 1202 (5th Cir. 1976); United States v. Newcomb, 488 F.2d 190 (5th Cir.), cert. denied, 417 U.S. 931, 94 S.Ct. 2642, 41 L.Ed.2d 234 The rule in this circuit, however, is not unbending. Thus, if the government's own case in chief injects substantial evidence of entrapment into the case, the defendant is entitled to raise the defense of entrapment. Sears v. United States, 343 F.2d 139 (5th Cir. 1965).

(1974); United States v. Russo, 455 F.2d 1225 (5th Cir.), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972). The rationale for the rule appears to be that to deny the very acts upon which the prosecution is predicated and at the same time to plead the defense of entrapment, which assumes that the acts charged were committed, is too inconsistent. United States v. Williamson, 482 F.2d 508, 515 (5th Cir. 1973); Government of the Canal Zone v. Risbrook, 454 F.2d 725 (5th Cir. 1972); United States v. Groessel, 440 F.2d 602 (5th Cir.), cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971); McCarty v. United States, 379 F.2d 285 (5th Cir. 1967). This position has recently come under strong attack as in conflict with prevailing Supreme Court authority and detached from its theoretical moorings. United States v. Demma, 523 F.2d 981 (9th Cir. 1975) (en banc ).

We do not think it is impermissibly inconsistent for a defendant to deny the acts charged, yet urge the court on motion for acquittal that the government's own evidence establishes entrapment as a matter of law. Similarly, the defendant is entitled to have a charge adjusted to the evidence, and if the government injects evidence of entrapment into the case, the defendant is entitled to have the jury instructed that if they find he committed the acts charged, they must further consider whether he was entrapped into committing them. We feel that the ultimate goal of the criminal trial, the ascertainment of truth, permits no other course. A criminal defendant should not forfeit what may be a valid defense, nor should the court ignore what may be improper conduct by law enforcement officers, merely because the defendant neglected to put the government to its proof.

Id. at 143-144. (citations omitted).

A second exception to the rule is that the defense of entrapment is available where a defendant denies that he was a party to or knew of a conspiracy with which he is charged, but admits commission of one of the alleged overt acts. Henderson v. United States, 237 F.2d 169 (5th Cir. 1956). Recognizing that the common goal of all trials of issues of fact is to arrive at the truth, the court in Henderson concluded "that inconsistent positions should be permitted or not permitted according to whether they might help or hinder a search for the truth. Perhaps that may depend upon the degree of inconsistency." Id. at 172. The analysis of the court in Henderson is instructive:

If the evidence fails to prove by the required standard that the defendant committed the act charged or had the requisite criminal intent, then, of course, the defense of entrapment is unnecessary. Usually, however, that cannot be foretold when the proof is being offered in advance of the jury's verdict. Then according to the circumstances and the nature of the case, proof of entrapment may or may not be so contrary or repugnant to proof that the defendant is otherwise not guilty, or rather to a lack of the required proof that the defendant is...

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