U.S. v. Irwin, 81-2088

• Decision Date: 20 November 1981
• Docket Number: No. 81-2088,81-2088
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Warren IRWIN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1063

661 F.2d 1063

UNITED STATES of America, Plaintiff-Appellee, v. James Warren IRWIN, Jr., Defendant-Appellant.

No. 81-2088.

United States Court of Appeals Fifth Circuit.

Nov. 20, 1981.

Phil Burleson, Michael D. McKinley, Dallas, Tex., for defendant-appellant.

Christian Harrison, Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before GEE and RUBIN, Circuit Judges, and SPEARS ^*, District Judge.

ALVIN B. RUBIN, Circuit Judge:

A pharmacist appeals from his conviction on two counts of unlawfully dispensing Preludin, a controlled substance, outside the usual course of medical practice. We find his challenges to the jury instructions and the prosecution's remarks during trial without merit. We also conclude that the district court did not err in denying his motion for a new trial based on his post-trial discovery that a state agent whose efforts initiated the prosecution and who testified at trial had not corrected the misstatement of another government witness because, even if this had been known, it would not likely have changed the result. Accordingly, we affirm.

I.

James Irwin, the appellant, is a registered pharmacist who owns and operates a pharmacy in Longview, Texas. As the result of a routine investigation, John Hitt, an investigator for the Texas Department of Public Safety, became suspicious that Irwin was illegally dispensing Preludin, i. e., that Irwin was filling prescriptions for Preludin that he knew were not issued in the usual course of medical practice for a legitimate medical purpose.

His suspicions thus aroused, Hitt enlisted Janice Godfrey, whom he knew to be a Preludin dealer, as an informer in exchange for a promise of immunity. Godfrey described to Hitt her past transactions with Irwin and, in accordance with Hitt's instructions made three additional purchases of Preludin from Irwin using forged and, in some instances, facially invalid prescriptions. Hitt electronically eavesdropped on the conversations which ensued between Godfrey and Irwin during these three transactions and recorded the final one.

Hitt also enlisted as an informer Tom James, another person whom Hitt knew to be a Preludin dealer. While James did not, as Godfrey had done, make any additional purchases of Preludin under Hitt's surveillance, he did describe to Hitt his past dealings with Irwin. James related that Irwin filled many Preludin prescriptions for him and that Irwin had also on three occasions sold James amounts of Preludin above and beyond the quantities called for in the prescriptions then being filled.

On the basis of this information and other evidence, Irwin was indicted on eight counts of unlawfully dispensing a Schedule II controlled substance, Preludin, pursuant to prescriptions that he knew were not issued in the usual course of medical practice for a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1) and 21 C.F.R. § 1306.04(a), and three counts of unlawfully distributing Preludin, not pursuant to any prescription, in violation of 21 U.S.C. § 841(a)(1). Four of the "unlawful dispensing" counts involved delivery of Preludin to Godfrey, and the other four "unlawful dispensing" counts and all three "unlawful distribution" counts involved delivery to James. ¹

Godfrey, James and Hitt were the major government witnesses at trial. Godfrey testified in general about her dealings with Irwin and specifically about the three occasions when she bought Preludin from Irwin pursuant to Hitt's instructions. ² During her cross-examination, the following dialogue occurred:

Q. The money that you were given (by Hitt) to buy drugs, is that the only money that was given you by any law enforcement agency any time up to the present?

A. Yes.

This answer was in fact untrue; Hitt had given Godfrey $60 to $70 prior to trial for expenses. ³ Hitt, however, was not asked about any payments he might have made to Godfrey.

Hitt, during his testimony, related the background facts of his initial routine investigation of Irwin's pharmacy. He said that he first became suspicious of Irwin when he noticed what seemed to be an inordinately large number of Schedule II prescriptions being filled by Irwin, that many of the prescriptions were for people whom Hitt knew or suspected to be drug dealers, and that Irwin acted nervously during Hitt's visits. Hitt told of his recruitment of Godfrey and James as informers, and what he had overheard of the secretly recorded conversations between Godfrey and Irwin during Godfrey's three directed purchases of Preludin.

James testified that he had originally been given a prescription for Preludin to help him lose weight. He soon learned, however, that he could sell Preludin tablets for $10 to $15 each, so he began going to doctors who would give him prescriptions. He would then take these prescriptions to Irwin's pharmacy to be filled. James stated that when he first started taking the prescriptions to Irwin, he was charged $18 for thirty 75 milligram tablets, but, after he began buying Preludin frequently, Irwin told him, "You must be selling them," and "They're going out on the street selling them, so we're going to change to $1 to $1.50 apiece." Thereafter, Irwin charged James from $30 to $40 for thirty tablets. James also identified a number of prescriptions that Irwin had filled for him.

James also testified that, after he was arrested for possession of drugs, he asked Irwin to prepare a list of all prescriptions that Irwin's pharmacy had filled for him over the past year. Irwin agreed, but told James that he would not show that James had received "too many Preludins together. He'd only show maybe one or two." The list, which was admitted into evidence, showed only one Preludin prescription, and omitted at least seven others.

Finally, James added that, shortly after Irwin was indicted, Irwin came to James's house to get a statement from James denying that Irwin had ever sold him "extra" Preludin. When James refused, Irwin threatened him.

There was other testimony pointing to Irwin's guilt. For example, Irwin's sales of Preludin dropped from 1400 tablets in a two-month period to 422 during the first two months of the investigation and finally to 180 in a two-month period when it continued. Another pharmacist from the same area testified that his pharmacy sold only about 100 Preludin tablets every four months and that its charge was only $12.50 to fill a prescription for thirty Preludin 75 milligram tablets.

The jury found Irwin guilty on all four of the counts involving delivery to Godfrey ("the Godfrey counts") and two of the "unlawful dispensing" counts involving James ("the James counts"); it returned "not guilty" verdicts as to all the rest. At a post-trial hearing on a motion for a new trial, Hitt revealed for the first time that he had made payments to Godfrey. Irwin then amended his motion to include arguments based on Godfrey's alleged perjury at trial. Irwin's motion was subsequently granted as to the Godfrey counts, ⁴ but the court reserved decision on the motion as it related to the James counts until further discovery could be had as to whether any other payments had been made to government witnesses. After this discovery was completed, and no other payments were disclosed, the trial judge denied Irwin's motion for a new trial on the James counts.

Irwin's appeal is thus from his conviction on the James counts and from the district court's denial of his motion for a new trial on those counts. We examine the latter point first.

II.

Irwin contends that inconsistencies within Hitt's testimony concerning the Godfrey payments at the post-trial hearing, further discrepancies between that testimony and documents relating to those payments produced pursuant to the post-trial discovery order, and, most importantly, Hitt's failure to correct Godfrey's incorrect statement at trial ⁵ combine to place "a significant taint on all of (Hitt's) sworn testimony, including that adduced at trial." Reduced to its essentials, Irwin's argument is that he should have been granted a new trial on the James counts because he was deprived of the opportunity to impugn Hitt's credibility by interrogating Hitt about his failure to correct Godfrey's misstatement. ⁶

Although it is not clear from Irwin's briefs, his argument seems to be founded on the Brady ⁷ doctrine, which requires a new trial when the prosecution has withheld exculpatory information from the defense. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court identified three distinct situations involving the nondisclosure of evidence by the prosecution. The first occurs when undisclosed evidence reveals that the government's case contained perjured testimony. Id., 427 U.S. at 103-04, 96 S.Ct. at 2397-98, 49 L.Ed.2d at 349-350. This was the situation claimed to exist with regard to Irwin's request for a new trial on the Godfrey counts because of her alleged perjury at trial. ⁸ The second type of case, exemplified by Brady itself, occurs when the defense makes a specific request for material which is not complied with by the government. Id., 427 U.S. at 104-06, 96 S.Ct. at 2398-99, 49 L.Ed.2d at 350-351. The third nondisclosure situation occurs when either a general request for all exculpatory material has been tendered by the defendant or when there has been no discovery request at all. Id., 427 U.S. at 106-07, 96 S.Ct. at 2399, 49 L.Ed.2d at 351. Moreover, the Brady doctrine, as expounded in Agurs, applies even though the evidence in question relates solely to the credibility of an important government witness. United States v. Anderson, 574 F.2d 1347, 1355 (5th Cir. 1978).

Irwin seeks to bring himself within the second category. The district court, in granting Irwin's motion for a new trial on the Godfrey counts, found that Irwin had, prior to trial, made a specific request that...