U.S. v. Kershman, No. 76-2075

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore HEANEY, ROSS and STEPHENSON; STEPHENSON
Citation555 F.2d 198
Docket NumberNo. 76-2075
Decision Date18 May 1977
PartiesUNITED STATES of America, Appellee, v. Bernard KERSHMAN, Appellant.

Page 198

555 F.2d 198
UNITED STATES of America, Appellee,
v.
Bernard KERSHMAN, Appellant.
No. 76-2075.
United States Court of Appeals,
Eighth Circuit.
Submitted April 11, 1977.
Decided May 18, 1977.
Rehearing and Rehearing En Banc Denied Jume 10, 1977.

Page 199

Theodore F. Schwartz, Clayton, Mo., for appellant.

Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo. (argued), and Barry A. Short, U. S. Atty., St. Louis, Mo., on brief, for appellee.

Before HEANEY, ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This direct criminal appeal is taken from a jury's verdict of guilty on three counts of a 19-count indictment. 1 The three counts charged appellant Kershman with the knowing and intentional distribution of dilaudid (a Schedule II narcotic drug controlled substance), in violation of 21 U.S.C. § 841(a)(1) (two counts), and conspiracy, in violation of 21 U.S.C. § 846. The district court 2 imposed sentence pursuant to 18 U.S.C. § 4205(c). Appellant alleges that errors in the instructions to the jury, in the admission of certain government exhibits, in the refusal to grant defendant's motion for mistrial, and in the refusal to voir dire the jury panel on certain questions proposed by the defendant, compel reversal of this conviction. In addition, appellant Kershman contends that the evidence was insufficient to sustain the verdict. We affirm.

Appellant Kershman has been a pharmacist for 39 years and has owned the Del Crest Plaza Pharmacy for the last 10 years. He came under suspicion as a result of an investigation by the St. Louis County Police Department of co-defendants Peggy Linze, Lawrence Alfred Smith and Patricia House.

The government's evidence showed that in May of 1976, the St. Louis County Police Department started surveilling the residence of Peggy Linze. In July officer Ted Zinselmeier arranged a purchase of dilaudid from Patricia House. After gaining House's confidence, he asked her about her supplier. House replied she was getting the dilaudid from Peggy Linze. When asked by Zinselmeier as to Linze's supplier, House replied that Linze had a connection who was a pharmacist. After several purchases from House, Officer Zinselmeier began purchasing dilaudid from Peggy Linze.

Page 200

Prior to a purchase of dilaudid on July 26, 1976, Linze advised Zinselmeier that she was out of dilaudid and was leaving to meet her "man." She was followed to a location where she met Lawrence Alfred Smith and from there the two proceeded to an office building where Kershman's pharmacy was located. Upon Linze's return from the office building, she was able to complete the sale of dilaudid to Zinselmeier. Another similar transaction took place during August of 1976.

On September 8, 1976, Zinselmeier arranged for a purchase of 425 tablets of dilaudid for $4,000 from Linze. Linze stated she would have to meet her "man" the next day to acquire a sufficient supply of dilaudid to complete the deal. Linze was followed, along with Lawrence Alfred Smith, to Kershman's pharmacy on September 9, 1976. Linze and Smith were arrested as they left the Del Crest Plaza Pharmacy with three bottles of dilaudid in their possession. Appellant Kershman was immediately approached by the police at which time he produced three prescriptions for the dilaudid he had just dispensed. A search warrant was then served and numerous order forms and prescriptions were seized from Kershman's pharmacy.

The first issue we address on this appeal is the appellant's contention of error in the instructions to the jury. More specifically, appellant Kershman contends that the following instructions assumed facts not in evidence and changed the reasonable doubt standard to a reasonably prudent man standard:

In this connection, you are further instructed that if you find that the prescriptions for Dilaudid which defendant filled and which are involved in Counts 12 and 16 were not issued for a legitimate medical purpose by a physician during the usual course of his professional practice and that under the facts and circumstances known to him defendant had every reason to believe that such purported prescriptions had not been issued for a legitimate medical purpose, and that defendant deliberately and consciously closed his eyes to what he had every reason to believe was the fact, such studied avoidance of positive knowledge is a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in this case, that defendant knew that such purported prescriptions had not been issued for a legitimate medical purpose, and hence were knowingly filled by him.

Several circuits have approved the use of an instruction wherein the jury is instructed that the element of knowledge may be shown by deliberate ignorance. United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied,426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976); United States v. Dozier, 522 F.2d 224, 226-27 (2d Cir.), cert. denied, 423 U.S. 1021, 96 S.Ct. 461, 46 L.Ed.2d 394 (1975); United States v. Thomas, 484 F.2d 909, 912-14 (6th Cir.), cert. denied, 414 U.S. 912, 94 S.Ct. 253, 38 L.Ed.2d 151 (1973);...

To continue reading

Request your trial
24 practice notes
  • U.S. v. Hiland, CARTER-GLOGAU
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 19, 1990
    ...See Massa, 740 F.2d at 642-43; United States v. Graham, 739 F.2d 351, 352-53 (8th Cir.1984) (per curiam); United States v. Kershman, 555 F.2d 198, 200-01 (8th Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977); accord United States v. DeVeau, 734 F.2d 1023, 1028 (5th Cir......
  • U.S. v. Smith, No. 07-2956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 28, 2009
    ...pushing pills ..., then he does not come within the exception, and the law is violated." (quotation omitted)); United States v. Kershman, 555 F.2d 198, 201 (8th Cir.1977) ("[T]he jury was instructed that if the pharmacist believed in good faith that a prescription was issued and prescribed ......
  • U.S. v. Dennis, No. 79-1278
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 29, 1980
    ...sufficient to support a finding of probable cause. United States v. Fleming, 566 F.2d 623, 625 (8th Cir. 1977); United States v. Kershman, 555 F.2d 198, 201 (8th Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977). Therefore, omissions of other facts would not be misrepre......
  • United States v. Birbragher, No. 07-CR-1023-LRR.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • July 22, 2008
    ...of professional practice. See Brief in Resistance to Bouchey and Kanner Motions at 17-19. Such cases include United States v. Kershman, 555 F.2d 198, 202 (8th Cir.1977) (finding sufficient evidence supported conviction of pharmacist under CSA); United States v. Steele, 178 F.3d 1230, 1232, ......
  • Request a trial to view additional results
24 cases
  • U.S. v. Hiland, CARTER-GLOGAU
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 19, 1990
    ...See Massa, 740 F.2d at 642-43; United States v. Graham, 739 F.2d 351, 352-53 (8th Cir.1984) (per curiam); United States v. Kershman, 555 F.2d 198, 200-01 (8th Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977); accord United States v. DeVeau, 734 F.2d 1023, 1028 (5th Cir......
  • U.S. v. Smith, No. 07-2956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 28, 2009
    ...pushing pills ..., then he does not come within the exception, and the law is violated." (quotation omitted)); United States v. Kershman, 555 F.2d 198, 201 (8th Cir.1977) ("[T]he jury was instructed that if the pharmacist believed in good faith that a prescription was issued and prescribed ......
  • U.S. v. Dennis, No. 79-1278
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 29, 1980
    ...sufficient to support a finding of probable cause. United States v. Fleming, 566 F.2d 623, 625 (8th Cir. 1977); United States v. Kershman, 555 F.2d 198, 201 (8th Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977). Therefore, omissions of other facts would not be misrepre......
  • United States v. Birbragher, No. 07-CR-1023-LRR.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • July 22, 2008
    ...of professional practice. See Brief in Resistance to Bouchey and Kanner Motions at 17-19. Such cases include United States v. Kershman, 555 F.2d 198, 202 (8th Cir.1977) (finding sufficient evidence supported conviction of pharmacist under CSA); United States v. Steele, 178 F.3d 1230, 1232, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT