U.S. v. Rogers
| Decision Date | 09 September 1992 |
| Docket Number | No. 91-2209,91-2209 |
| Citation | 976 F.2d 734 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. James ROGERS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before DAVID A. NELSON, ALAN E. NORRIS and SUHRHEINRICH, Circuit Judges.
Defendant James Rogers, a licensed Michigan pharmacist and owner of Sun Pharmacy, appeals his jury convictions on one count of conspiracy to distribute a controlled substance and twenty counts of distribution of controlled substances outside the course of legitimate pharmacy practice. The government charged that during an eight to nine month period in 1988, defendant knowingly filled twenty-three phony prescriptions for Dilaudid, Tylenol IV, and Percodan. We AFFIRM.
On August 25, 1988, agents of the Federal Bureau of Investigations surveilling an individual named George Thomas, observed him leave Sun Pharmacy, in Mt. Clemens, Michigan. The agents followed him back to Detroit at which time they stopped Thomas's vehicle. Thomas told the agents that he had just returned from Sun Pharmacy and that he purchased 200 Tylenol IV tablets; and that he purchased drugs from Sun Pharmacy on over 100 occasions. He agreed to make a controlled purchase of prescription drugs from Sun Pharmacy.
On the morning of September 2, 1988, Thomas made a controlled purchase of 100 Tylenol IV tablets and 100 Percodan tablets. The agents provided Thomas with a prescription for Percodan and ten one hundred dollar bills. Thomas paid the pharmacist seven one hundred dollar bills for the tablets.
Shortly thereafter, at approximately 10 a.m., David Wilson served an administrative subpoena at Sun Pharmacy. The agents gave defendant a copy of the subpoena, which required defendant to produce by 11 a.m. that day, any and all prescriptions from January 1985 to the present, and all orders and invoices for Schedule II drugs and DEA 222 for the same period. The agents explained the terms of the subpoena to defendant. Defendant offered no resistance or objection and immediately turned over the requested items. The agents did not inform defendant that he was the subject of a criminal investigation.
Defendant provided twenty-three prescriptions for Dilaudid, stating that each one had been brought in by Thomas. Rogers told Barenie that he charged Thomas ten dollars per Dilaudid tablet per four milligram tablet and five dollars per two milligram tablet. He also furnished Barenie with the seven hundred dollar bills that Barenie and Wilson had previously given Thomas.
All of the twenty-three prescriptions were written on the prescription pad of Dr. Vashna Gupta, M.D., and made out to the names of five different people. Gupta later testified that she did not write the prescriptions and that the five patients' names were not her patients. Three of the five patients also testified that these were not their prescriptions.
At the trial, the government introduced Thomas's confession through Special Agent Wilson. Both Wilson and Thomas testified as to Thomas's numerous dealings with defendant. At the time of trial, Thomas had already pled guilty and entered into a plea agreement with the government whereby he would testify in exchange for a maximum sentence of sixteen months.
Rogers was convicted on all counts July 11, 1991, after a jury trial. This appeal followed.
Defendant argues that the lower court erred in allowing Special Agent Wilson to testify that Thomas, upon his arrest, stated that he had purchased the controlled substances from Rogers; furthermore, that he had purchased pills from defendant on prior occasions. Defendant maintains that the admission of the statements violated his Sixth Amendment right to confrontation as defined in Bruton v. United States, 391 U.S. 123 (1968) and his Fifth Amendment right to a fair trial.
Under Bruton, a nontestifying codefendant's incriminating pretrial confession at a joint trial violates the defendant's Sixth Amendment right to confrontation if it similarly implicates the defendant. Bruton, 391 U.S. at 126. See also Richardson v. Marsh, 481 U.S. 200 (1987); Cruz v. New York, 481 U.S. 186 (1987). The right of confrontation includes the right of an accused on a criminal case to cross-examine the witnesses against him. Id; see also United States v. Gomez-Lemos, 939 F.2d 326, 333 (6th Cir.1991) (). In this case, Thomas did testify and was subject to cross-examination by defense counsel. Thus, Bruton is inapplicable.
Defendant also contends that the district court impermissibly admitted "other crimes" under Fed.R.Evid. 404(b), by allowing "evidence that Thomas had illegally purchased prescription drugs from Rogers on over 100 occasions." The government responds that defendant has waived the issue.
Challenges to the admission of evidence must state "the specific ground of objection, if the specific ground is not apparent from the context." Fed.R.Evid. 103(a)(1). "This rule serves to ensure that the nature of the error [is] called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take corrective measures." United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.1990) (quoting Advisory Committee's Note to Rule 103(a), 56 F.R.D. 183, 195 (1972), cert. denied, 111 S.Ct. 363 (1990). A party fails to preserve an objection not only by failing to make a specific objection, but also by making the wrong objection. Id. (emphasis in original); United States v. Schrock, 855 F.2d 327, 332-33 n. 8 (6th Cir.1988).
Here defendant objected to Thomas's testimony on a relevancy grounds, not Rule 404(b). Thus, we can only review for plain error. See Fed.R.Evid. 103(a) and (d). Plain error is error that "seriously affects the fairness, integrity on public reputation of judicial proceedings." United States v. Young, 470 U.S. 1 (1985).
Although evidence of "other crimes" is inadmissible to prove the character of a person, such evidence may be admitted if it demonstrates "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Fed.R.Evid. 404(b); United States v. Paulino, 935 F.2d 739, 754 (6th Cir.1991). In this case Thomas's testimony was offered to show an ongoing relationship between Thomas and Rogers, as well as the development of a conspiracy.
This circuit has repeatedly upheld the admission under Rule 404(b) of acts outside the time period of the indictment for the "legitimate purpose of showing the background and development of a conspiracy." Paulino, 935 F.2d at 755 (quoting United States v. Hitow, 889 F.2d 1573, 1578-79 (6th Cir.1989) (citation omitted); United States v. Passarella, 788 F.2d 377, 383 (6th Cir.1986); United States v. Ismail, 756 F.2d 1253, 1259 (6th Cir.1986). Similarly, we cannot say that the evidence was unduly prejudicial under Fed.R.Evid. 403. See United States v. Simmons, 923 F.2d 934 (2d Cir.1991) (). Finally, the trial court gave a limiting instruction as to the proper use of evidence immediately after the evidence was admitted.
Defendant's next assignment of error relates to the lower court's ruling limiting defendant's cross-examination of Thomas concerning the terms of his plea agreement. The district court allowed defense counsel to cross-examine the witness as to the agreement, but refused to any questioning regarding specific sentencing concessions under the sentencing guidelines.
While the Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront hostile witnesses, Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986); the guarantee extends only "an opportunity for effective cross-examination not cross-examination in whatever way, and to whatever extent, the defense might wish." Id. at 679 (quoting Delaware v. Fernsterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in original)). Thus a trial judge retains wide latitude to impose reasonable limits on such cross-examination. Id. Constitutional error does not occur unless "[a] reasonable jury might have received a significantly different impression of [the witness's] credibility had respondent's counsel been permitted to pursue his proposed line of cross-examination." Id. at 680; United States v. Martin, 920 F.2d 393, 396 (6th Cir.1990) (en banc) ("Even in cases where an improper evidentiary ruling limits cross-examination, the test is 'whether the jury had enough information, despite the limits placed on otherwise permitted cross-examination, to assess the defense theory.' " (quoting Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir.), cert. denied, 110 S.Ct. 103 (1989)). This court has also stated that when it is merely the extent of cross-examination that is limited, as opposed to limiting information presented in the jury, the trial judge retains a much wider latitude of discretion. Dorsey, 872 F.2d at 167. A district court's rulings in this regard are reviewed for abuse of discretion, although curtailment of defendant's cross-examination of a "star" government witness "must be more carefully scrutinized." Id. at 166.
The record reflects that defense counsel had ample opportunity to cross-examine Thomas. Thomas was questioned about his plea agreement, including the sentence he would receive and the fact that the government would not prosecute his other offenses. Furthermore, the...
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