U.S. v. Hammond, 85-8284
| Decision Date | 10 February 1986 |
| Docket Number | No. 85-8284,85-8284 |
| Citation | 781 F.2d 1536 |
| Parties | 19 Fed. R. Evid. Serv. 1714 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth HAMMOND, Defendant-Appellant. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
A. Leroy Toliver, Atlanta, Ga., for defendant-appellant.
Charles E. Brown, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before GODBOLD, Chief Judge, and HILL and ANDERSON, Circuit Judges.
FACTS
This appeal arises from the following facts. On September 5, 1984, appellant Kenneth Hammond was indicted by a federal grand jury on the following charges: (1) conspiracy to distribute Didrex, a Schedule III drug, in violation of 21 U.S.C. Sec. 846; (2) 116 counts of distributing controlled substances in violation of 21 U.S.C. Sec. 841(a)(1); and (3) aiding and abetting in the above offenses in violation of 18 U.S.C. Sec. 2. Co-defendant Dr. Fred Henson, indicted on the same offenses, was charged with an additional 96 counts of unlawfully distributing controlled substances. On January 25, 1985, two days after trial began, co-defendant Henson entered a plea of guilty as to the conspiracy count and two of the substantive counts. Trial then resumed as to appellant alone, and on February 13, 1985, Hammond was found guilty of the conspiracy count and 113 of the 116 substantive counts.
The evidence introduced at the trial showed that appellant was a pharmacist operating a drug store in the community of Hiram, Georgia. The illegal distribution of which appellant was convicted concerned prescriptions for controlled drugs filled by Hammond issued for what the jury determined to be no legitimate purpose. All of the relevant prescriptions were written by Henson, a Hiram physician whose office space was located next door to Hammond's drug store, Hiram Drugs.
We first examine appellant's contention that the evidence was insufficient to support his conviction on the conspiracy or substantive counts. Evidence introduced at trial clearly established Dr. Henson issued the prescriptions of which we are concerned for no legitimate medical purpose. Commencing in the late 1970's, Dr. Henson began writing prescriptions for controlled substances, primarily Didrex, on a large scale basis. Over 90% of the prescriptions written by Henson were for controlled substances, a figure expert testimony indicated was outrageously high and dramatically out of line with the practice of other physicians. Further, Henson's patient volume was extraordinary. Testimony of witnesses described the parking lot in front of Hiram Drugs and Henson's office as a "sea of cars." Approximately 90% of Henson's patients were from outside the county, and witnesses described scenes of patients arriving by the car load from various counties across North Georgia and Alabama. Henson saw his patients only briefly and during office hours averaged issuing a prescription for a controlled substance every five minutes. Often the scheduled drugs were dispensed to patients for periods of years when established medical procedures would have limited distribution to a matter of weeks. Further, Henson apparently ignored the practice of individualized dosing, a practice routinely followed in the medical profession of gradually increasing the amounts of the dosage over a period of time until the required level is obtained. This course of conduct led physicians testifying at the trial as expert witnesses to conclude that Henson's practice was completely outside the usual course of medical practice and not for any legitimate purpose.
Other evidence introduced at trial indicated that appellant knowingly participated in and furthered Henson's scheme by filling improperly issued prescriptions even though aware they were being issued for no legitimate purpose. Hammond conveniently rented to Henson for a small sum office space next door to Hiram Drugs from which Henson operated his office. In turn, the great bulk of prescriptions issued by Henson, particularly for the controlled drug Didrex, were filled by Hammond. 1
Thus, serving as the pipeline through which Henson's patients could obtain their "prescribed" drugs, Hiram Drugs began functioning as a virtual wholesaler of the controlled drug Didrex. The sales records of Upjohn Company, the manufacturer of Didrex, reveal that in a sales territory consisting of 66 pharmaceutical customers, Hiram Drugs purchased 82.3% of the Didrex sold in the territory. In its North Georgia district, consisting of and including Atlanta and Augusta, Hiram Drugs purchased 35.2% of all Didrex sold. In fact, of the 1,174 retail pharmacies and 21 wholesale distributors representing Upjohn's entire market for Didrex in the state of Georgia, Hiram Drugs purchased 19.5% of all the Didrex sold, though located in a town with a population of only 1200.
Testimony regarding two other pharmacies located in the Hiram area illustrates perhaps even more clearly the disproportionate prescription volume. For the year 1982 Reed Drug Store and Revco Drugs purchased approximately 2700 and 5200 Didrex tablets respectively. Meanwhile, during the same year Hiram Drugs purchased approximately 512,500 tablets of Didrex from Upjohn. Even this volume failed to satisfy Hammond's need for Didrex, however, so that during this same period he purchased additional amounts of Didrex from wholesalers. Hammond's purchases finally reached such a volume that in November, 1983, Upjohn discontinued selling Didrex to Hiram Drugs.
Experts testified that such an outrageous volume would have alerted any pharmacist that prescriptions were being improperly issued. These experts also testified that the lack of individualized dosing should have further alerted Hammond. Hammond admitted he knew that 80 to 90 per cent of Henson's prescriptions were for persons outside of Paulding County and that 90 per cent of those were for controlled substances. He further testified that he was aware Henson had lost his medical license for a period of time in 1973, and that this sanction was related to prescriptions issued for controlled substances. Yet Hammond admitted knowing the law required him not to fill prescriptions written for no legitimate purpose. Based upon facts and figures presented at trial, pharmacists testifying as experts concluded that appellant Hammond was encouraging diversion or nonlegitimate medical use of controlled substances. The evidence clearly warranted the finding that Hiram Drugs, with the knowledge and participation of its owner, Kenneth Hammond, acted as a conduit for the improper dispensing of controlled substances.
Appellant contends that the trial court improperly denied a judgment of acquittal as to the 49 counts involving prescriptions which, though filled at the appellant's drug store, were not filled by the appellant personally. As previously discussed, evidence introduced at trial indicated that appellant was on notice of Henson's incredible prescribing pattern for controlled substances, that these practices brought "patients" from across North Georgia and Alabama, and that as a result Hiram Drugs was purchasing a fantastic volume of the drug Didrex. This evidence was sufficient to warrant a jury finding that appellant knew Henson was writing prescriptions for no legitimate purpose and as sole proprietor chose to encourage and stimulate Henson's unlawful venture by furnishing his pharmacy as a conduit to supply the extraordinary demand created by Henson's unlawful prescriptions. The fact that Hammond did not personally sign or initial each Henson prescription filled at his pharmacy is not dispositive inasmuch as appellant controlled the pharmacy and the relief pharmacists which he occasionally employed. It is not necessary in order to convict a defendant of aiding and abetting to show that he participated in every act of the criminal venture, rather only that the defendant "was associated with the criminal venture, participated in it as something he wished to bring about, and sought by his action to make it succeed." United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir.1981) (quoting United States v. Martinez, 555 F.2d 1269, 1272 (5th Cir.1977)). Aware that Henson was issuing prescriptions for no legitimate purpose and that the overwhelming majority of these prescriptions were being filled at Hiram Drugs, appellant deliberately chose to continue to allow Henson's prescriptions to be filled at his drug store. The evidence presented was sufficient to warrant the judge's denial of acquittal as to the 49 prescriptions which, though not signed by the appellant, were filled at appellant's drug store.
Appellant alleges the trial court erred by denying his motion for severance based on improper joinder, pursuant to Fed.R.Crim.P. 8(b), and alternatively that severance should have been granted because of improper joinder in violation of Fed.R.Crim.P. 14. Appellant's allegations of prejudice and misjoinder concern the 96 counts on which Henson alone is charged, offenses involving prescriptions...
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