U.S. v. Schuster, No. 84-4705

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GARZA, POLITZ and HILL; POLITZ
• Citation: 777 F.2d 264
• Parties: 19 Fed. R. Evid. Serv. 187 UNITED STATES of America, Plaintiff-Appellee, v. Richard E. SCHUSTER, M.D., Defendant-Appellant.
• Docket Number: No. 84-4705
• Decision Date: 26 November 1985

Page 264

777 F.2d 264 19 Fed. R. Evid. Serv. 187 UNITED STATES of America, Plaintiff-Appellee,
v.
Richard E. SCHUSTER, M.D., Defendant-Appellant. No. 84-4705. United States Court of Appeals,
Fifth Circuit. Nov. 26, 1985.

Page 266

Johnston & Younger, Jerry T. Johnston, Michael P. Younger, Brandon, Miss., for defendant-appellant.

George Phillips, U.S. Atty., James B. Tucker, Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GARZA, POLITZ and HILL, Circuit Judges.

POLITZ, Circuit Judge.

Richard E. Schuster, M.D., convicted of one conspiracy and 19 substantive counts for the unlawful dispensing and distributing of controlled substances in violation of 21 U.S.C. Secs. 846 and 841(a)(1), appeals, assigning multiple errors. Although some assignments of error are meritorious, no challenge constitutes reversible error; accordingly, we affirm the convictions.

Facts

A proper disposition of several of the issues raised requires a detailed factual background. In mid-1981 agents of the federal Drug Enforcement Administration (DEA) and the Mississippi Bureau of Narcotics (MBN) began a joint investigation into what was then viewed as suspicious prescription-writing practices of Schuster. Two undercover agents posing as patients made a total of six visits. On each occasion they received prescriptions for controlled substances, without a medical examination and for no legitimate medical regime nor purpose. The investigative team reviewed over 3,500 prescriptions and developed a pattern by Schuster of prescribing Schedule II controlled substances in excessive amounts to the same persons and to known drug addicts and drug abusers.

In November 1981, a search warrant was issued by a federal magistrate authorizing the search of Schuster's office for the medical and business records of persons falling into the two suspected categories. The warrant was issued on the basis of an affidavit prepared jointly by the DEA and MBN agents but actually signed by the MBN agent who declared in its text that he was supervised by and was working with the DEA agent. The search was conducted by both DEA and MBN agents, and the return on the warrant was made by the DEA agent.

The investigation apparently languished for awhile but was renewed with the issuance and execution of a similar search warrant in April of 1983. A few days later, on April 21, 1983, Schuster was indicted for offenses spanning the period November 1976-April 1983.

At his arraignment on April 26, 1983, Schuster agreed, as a condition of his release on bail, to surrender his DEA certificate

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which authorized him to prescribe controlled substances. On May 31, 1983, Schuster's counsel filed a 99-page "Omnibus Motion" seeking various forms of relief, including a dismissal of the indictment for discrimination in the selection of the grand jury. Additionally, a challenge was made to the method of selecting the petit jury. This motion was supplemented on October 17, 1983 with a 19-page "Omnibus Motion." At a hearing on October 20, 1983, the trial judge took all motions then before the court under advisement, except that relating to the jury challenges. Defense counsel informed the court that the defense was not then ready to proceed on that motion and needed more time to prepare factual data. Defense counsel's request that the court continue the motion to an undesignated later date was granted.

In November, before the court could rule on the first Omnibus Motions, defense counsel filed a 35-page motion, together with 35 pages of exhibits, asserting Speedy Trial Act violations. A few days later counsel added 32 pages to that motion.

On December 14, 1983, the district court disposed of all issues raised in the Omnibus Motions except that part challenging the legality of the selection process for grand and petit jurors which had been continued at the request of defense counsel.

On January 30, 1984 the district court issued a memorandum opinion and order disposing of the motions filed in November 1983. The court therein addressed defendant's Speedy Trial Act complaint and found that as of that date "only eight days have ticked off the speedy trial clock, leaving sixty-two days from the present date within which the defendant's trial must commence, assuming there are no other motions filed by the defendant which would toll the time period." Defense counsel made no mention of the pending motion and took no steps to set it for hearing. Following local practice, the clerk of court did not move the case to the trial docket because of the pending motion.

After an unsuccessful effort to get defense counsel to seek a hearing on the jury-related motion, the United States Attorney moved for its rejection. In response, on June 15, 1984, defense counsel renewed his Speedy Trial Act claim. The district court promptly rejected the outstanding jury-claim motion, rejected the Speedy Trial Act challenge, and found as a fact that all intervening time since January 30, 1984 was excludable under 18 U.S.C. Sec. 3161(h)(1)(F). ¹

The record reflects the filing of other motions by the defendant, including a request for a continuance, before the trial began on September 7, 1984. The government relied on documentary evidence, including medical files, medical pamphlets, and prescription records, as well as the testimony of fact witnesses and expert medical witnesses. Witnesses included the undercover agents and two physicians who attested to the lack of a legitimate medical purpose for the various drug prescriptions and injections ordered by Schuster.

On appeal, Schuster claims a Speedy Trial Act violation and complains of rulings on motions and various evidentiary rulings. He also complains of prosecutorial misconduct and asserts that the verdicts are not supported by the evidence.

Analysis & Discussion

1. Speedy Trial Act.

The canon of appellate review for Speedy Trial Act complaints is the clearly erroneous standard as to the factual findings by the district court, with full review of legal conclusions. United States v. Nance, 666 F.2d 353 (9th Cir.), cert. denied,

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Y456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982). The defendant contends that the district court erred in denying his motion to dismiss for the Speedy Trial Act violation because the trial was not commenced within 62 days of the January 30, 1984 memorandum order. We are not persuaded. At the time of the entry of the January 30, 1984 ruling there was a defense motion pending, the one which had been continued for an indefinite period at defense counsel's request. Defendant made no effort to call that motion for hearing, and when the prosecutor sought its disposition, Schuster raised the shield of the Speedy Trial Act. Neither the words nor the spirit of the Speedy Trial Act extend to defendant the protection he now claims. The pending motion tolled the accrual of time under the Speedy Trial Act. 18 U.S.C. Sec. 3161(h)(1)(F). Such time is automatically excludable and "all but absolute." United States v. Horton, 705 F.2d 1414, 1416 (5th Cir.1983), cert. denied, 464 U.S. 997, 104 S.Ct. 496, 78 L.Ed.2d 689 (1984). As we noted in Horton, 705 F.2d at 1416:

As Congress doubtless recognized in enacting exclusion F, today's motion practice in criminal cases can be, and often is, both complex and dispositive. That exclusion places no rigid time strictures on the practice whatever, and only the shadow of an implied one.

That the trial court inadvertently may have overlooked the continued pendency of the jury-related motion when it entered the January 30, 1984 order does not by some legal legerdemain evanesce that motion. It continued to pend until withdrawn or ruled on. Although pending, it had not been taken under advisement, an act which would have triggered the 30-day constraint of Sec. 3161(h)(1)(J). Defense counsel's request for a continuance prevented that motion from being taken under advisement. We conclude that the time from January 30, 1984 until the trial court ruled on the motion relating to the jury procedures, was excludable under the Speedy Trial Act. United States v. Schmidt, 711 F.2d 595 (5th Cir.), reh'g. denied, 716 F.2d 901 (1983), cert. denied, 464 U.S. 1041, 104 S.Ct. 705, 79 L.Ed.2d 169 (1984). Accordingly, the trial commenced timely.

2. Loss of DEA license.

Schuster maintains that his trial was rendered unfair when the prosecutor asked a former patient the following question: "Isn't it true that the reason you quit going to see Dr. Schuster was because he couldn't write prescriptions anymore?" The witness answered: "I guess so, yes." Defense counsel's objection was sustained, and the court instructed the government not to pose any more questions relating to Schuster's suspended DEA license. Counsel declined a cautionary instruction to the jury, apparently concerned that such might unduly underscore the question and answer.

Defendant contends that the question breached a pretrial agreement that the "voluntary" surrender of the license would not be mentioned and that...