U.S. v. Word, No. 86-5109

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore MERRITT, GUY and NORRIS; RALPH B. GUY, Jr.
Parties22 Fed. R. Evid. Serv. 118 UNITED STATES of America, Plaintiff-Appellee, v. Jerry L. WORD, Defendant-Appellant.
Decision Date01 December 1986
Docket NumberNo. 86-5109

Page 658

806 F.2d 658
22 Fed. R. Evid. Serv. 118
UNITED STATES of America, Plaintiff-Appellee,
v.
Jerry L. WORD, Defendant-Appellant.
No. 86-5109.
United States Court of Appeals,
Sixth Circuit.
Argued Sept. 29, 1986.
Decided Dec. 1, 1986.

Page 660

Dale Quillen, Nashville, Tenn., Lucinda Smith (argued), for defendant-appellant.

Joe B. Brown, U.S. Atty., Nashville, Tenn., William M. Cohen (argued), Nashville, Tenn., for plaintiff-appellee.

Before MERRITT, GUY and NORRIS, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Defendant Jerry L. Word appeals his conviction on 45 counts of violating the drug laws of the United States. For the reasons given below, we affirm.

On November 13, 1985, defendant, a licensed physician, was indicted on 46 counts, including conspiracy to distribute controlled substances, distribution of controlled substances for other than a legitimate medical purpose, and attempted distribution of controlled substances for other than a legitimate medical purpose. The gravamen of the indictment and the government's proofs was that the defendant was selling prescriptions for Dilaudid, a controlled substance, for large sums of money, and that such was done for other than a legitimate medical purpose in the usual course of professional practice. Following a jury trial, defendant was convicted on 45 of the 46 counts in the indictment and was sentenced to a total term of 25 years incarceration to be followed by a three-year special parole term. Defendant raises numerous issues which we address seriatim.

I.

Defendant first argues that the trial court erred in denying his motion to suppress evidence seized pursuant to a search

Page 661

warrant during the searchof his office. The warrant was executed on May 29, 1985, and various records were seized in accordance with the warrant. An evidentiary hearing was held on defendant's motion to suppress, after which the trial court rejected all of defendant's challenges to the execution of the search warrant.

The search warrant authorized the agents to seize prescription pads, correspondence, patient logs, appointment books, patient payment records, medical records, and prescription records pertaining to certain named patients, together with other records. Defendant complains that the following items seized by the agents were not within the scope of the warrant:

2 bundles of day sheets

10 day sheets from receptionist's desk

Steno notebook for sign-in by patients dating from 2/4/81 to 11/6/81

Spiral notebook for sign-in by patients dating from 6/19/81 to 10/82

Spiral notebook for sign-in by patients dating from 5/25/82 to 12/7/83

Blue spiral notebook for sign-in by patients dating from 12/8/83 to 12/18/84

Green spiral notebook for sign-in by patients dating from 12/20/84 to 5/2/85

Box daily payment sheets (encounter sheets)

36 patient hospital admission records

5 boxes patient encounter forms.

One of defendant's employees, Ms. Sherrill, testified that "day sheets" were used as a payment record in order to keep track of the patients seen by the defendant on a particular day. "Day sheets" also contain a patient diagnosis. Sign-in notebooks were identified by the witness as appointment books used to determine what patients were at the office on a particular day. Ms. Sherrill identified the hospital records as medical records. Finally, "encounter sheets" were described by the witness as a sheet used to complete a day sheet, containing information regarding billing, diagnosis, and whether a patient had been seen by the doctor on a certain day.

Based on this testimony, the trial court found that while the nomenclature assigned to these items by the defendant might differ from the description contained in the warrant, essentially these items constituted medical records, payment records, and other items as described in the warrant. We agree with the trial court that it is the substance of the document which controls, and not the label assigned to it by the defendant. Defendant has not argued that, substantively, these items differed from those described in the warrant. Consequently, the trial court did not err in refusing to suppress the evidence for this reason.

Defendant also complains that the search warrant failed to describe with particularity the items to be seized. Specifically, defendant argues that the warrant simply lists the type of records typically found in a physician's office and, therefore, the warrant was overbroad. As did the trial court, we must reject this argument. While the type of documents to be seized was broadly stated, we note that the warrant was limited to documents relating to certain of the defendant's patients. The fact that these documents were of the type normally found in any physician's office is immaterial. We believe that the warrant was sufficiently definite so that the agents could identify the property sought with reasonable certainty.

Defendant next contends that the search was tainted by an allegedly illegal search conducted by agents of the Tennessee Bureau of Investigation (TBI) pursuant to a subpoena. While federal agents were executing the federal search warrant, state agents seized certain records pursuant to a state subpoena to use as evidence in a state Medicaid investigation of defendant. The trial court found that the functions of the two sets of officers were different and that the state and federal officers were looking for two different things. The court accepted the government's assertion that the government had not seen the information seized by the TBI and would not use any of the information obtained by the TBI, at the

Page 662

same time stating that the court would be observant during trial to assure that none of the information obtained by state officials was introduced. Defendant does not allege that any of the evidence seized by state officers was introduced or utilized by the government. Accordingly, there was no error.

Defendant contends that the affidavit in support of the search warrant fails to set forth information regarding the individuals named in the warrant which would support a finding that their records would be in the office of the defendant or that their records would evidence illegal diversion of Dilaudid. This argument is without merit. The affidavit extensively set forth a scheme of selling prescriptions for Dilaudid, some of which were sold to individuals but which were written in the name of defendant's patients. The patients' names listed in the affidavit and search warrant were those appearing on prescriptions written for Dilaudid, the prescriptions having been seized from Skelton's Pavillion Pharmacy, where the pharmacist, Andrew Skelton, admitted to filling Dilaudid prescriptions in the amount of 100 tablets for individuals who brought in three or four prescriptions at a time. Some of these individuals, as alleged in the affidavit, were known to DEA agents as being street dealers of controlled substances. Thus, probable cause existed as to the patients named in the search warrant since prescriptions had been written for Dilaudid in their names. Since these individuals were patients of the defendant, probable cause existed for believing that their medical records would be located at the defendant's office.

Defendant's final contention in relation to the search warrant is that the information set forth in the warrant was stale and therefore failed to set forth probable cause that the documents seized were on the premises to be searched. The search warrant was issued on May 28, 1985. The most recent illegal sale of prescriptions alleged in the warrant occurred in January, 1985. The affidavit also set forth the results of several inspections conducted at the Skelton Pharmacy, the last of which occurred on April 9, 1985, where additional prescriptions for Dilaudid, written by defendant, were seized. The events recounted in the affidavit dated from June 18, 1984 to April 29, 1985. Based on these facts, we cannot conclude that the search warrant contained stale information when the events alleged in the affidavit were of a continuing nature and the documents sought were business records prepared and kept in the ordinary course of business.

Accordingly, the trial court did not err in denying defendant's motion to suppress the evidence.

II.

Defendant contends that there was no proof from which a jury could conclude that his conduct was not in the usual course of professional practice because the government presented no expert testimony to contradict the defendant's testimony that he acted properly when writing prescriptions. While this circuit has never addressed this issue, it has become well established in other circuits that expert testimony is not required in a case such as the present one.

In United States v. Bartee, 479 F.2d 484 (10th Cir.1973), the seminal case on this question, the defendant and the government presented conflicting testimony by doctors as to legitimate medical purpose and the usual course of professional practice. The court found:

Expert testimony from medical practitioners is of course admissible as bearing on the issue as to whether a doctor in prescribing a controlled substance is acting for a legitimate medical purpose, and the expert testimony in the instant case was to some degree, at least, in conflict. However, the jury is not bound by such expert testimony and may of course consider all of the facts and circumstances surrounding the prescribing as related by law witnesses.

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127 practice notes
  • U.S. v. Armstrong, No. 07-30286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 2008
    ...trier of fact does not need outside, specialized knowledge to understand the evidence or determine the facts.10 See United States v. Word, 806 F.2d 658, 663-64 (6th Cir.1986) (finding that expert testimony about the usual course of professional conduct and legitimate medical purposes may he......
  • Thomas v. Warren, No. CIV. 04-CV-40196-FL.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 2, 2005
    ...undisclosed evidence is disclosed during trial unless the defendant is prejudiced by its prior nondisclosure. United States v. Word, 806 F.2d 658, 665 (6th Cir.1986); see also Edkin v. Travis, 969 F.Supp. 139, 143 (W.D.N.Y.1997) (Brady violation did not occur when defense counsel ultimately......
  • United States v. Dejournett, CASE NO. 5:13CR513
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • July 29, 2014
    ...case-by-case analysis, see Spikes, 158 F.3d 923, the Court can take some guidance from other cases. In United States v. Word, 806 F.2d 658, 662 (6th Cir. 1986), the court found that probable cause for a search warrant existed despite the passage of four months since the last documented drug......
  • U.S. v. Abboud, No. 04-3942.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 17, 2006
    ...Cir.1982)). This Court has found that business records are a type of evidence that defy claims of staleness. See United States v. Word, 806 F.2d 658, 662 (6th Cir.1986); United States v. Brownderville, No. 98-1374, 1999 WL 618067, at *4 (6th Cir. Aug. 2, 1999); see also United States v. Sin......
  • Request a trial to view additional results
127 cases
  • U.S. v. Armstrong, No. 07-30286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 2008
    ...trier of fact does not need outside, specialized knowledge to understand the evidence or determine the facts.10 See United States v. Word, 806 F.2d 658, 663-64 (6th Cir.1986) (finding that expert testimony about the usual course of professional conduct and legitimate medical purposes may he......
  • Thomas v. Warren, No. CIV. 04-CV-40196-FL.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 2, 2005
    ...undisclosed evidence is disclosed during trial unless the defendant is prejudiced by its prior nondisclosure. United States v. Word, 806 F.2d 658, 665 (6th Cir.1986); see also Edkin v. Travis, 969 F.Supp. 139, 143 (W.D.N.Y.1997) (Brady violation did not occur when defense counsel ultimately......
  • United States v. Dejournett, CASE NO. 5:13CR513
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • July 29, 2014
    ...case-by-case analysis, see Spikes, 158 F.3d 923, the Court can take some guidance from other cases. In United States v. Word, 806 F.2d 658, 662 (6th Cir. 1986), the court found that probable cause for a search warrant existed despite the passage of four months since the last documented drug......
  • U.S. v. Abboud, No. 04-3942.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 17, 2006
    ...Cir.1982)). This Court has found that business records are a type of evidence that defy claims of staleness. See United States v. Word, 806 F.2d 658, 662 (6th Cir.1986); United States v. Brownderville, No. 98-1374, 1999 WL 618067, at *4 (6th Cir. Aug. 2, 1999); see also United States v. Sin......
  • Request a trial to view additional results

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