United States v. Lawson

• Decision Date: 08 October 1980
• Docket Number: Crim. No. M-80-0249.
• Citation: 502 F. Supp. 158
• Parties: UNITED STATES of America v. Alfred M. LAWSON and Thomas E. Lane, Jr.
• Court: U.S. District Court — District of Maryland

502 F. Supp. 158

UNITED STATES of America v. Alfred M. LAWSON and Thomas E. Lane, Jr.

Crim. No. M-80-0249.

United States District Court, D. Maryland.

October 8, 1980.

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Russell T. Baker, Jr., U. S. Atty., Gerald M. Richman, and Robert N. McDonald, Asst. U. S. Attys., Baltimore, Md., for plaintiff.

Fred Warren Bennett, Paul W. Spence, Deborah E. Jennings, and Kathleen S. Downs, Baltimore, Md., for defendants.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

This case is before the court on defendants' motion to dismiss the indictment against them on the ground of alleged grand jury abuse.¹ A hearing was held on September 18, 1980, and the parties subsequently submitted supplemental memoranda.² Having reviewed the materials submitted by the parties and the testimony adduced at the hearing, the court concludes that the indictment against defendants Lawson and Lane should be dismissed, without prejudice.

I. Factual Background

Defendants Alfred M. Lawson, Thomas E. Lane, Jr., and Ronald Vance Smith³ were indicted by a federal grand jury on June 25, 1980. Count I of the indictment charges a single conspiracy between Lawson, Lane, Smith and others to distribute dilaudid, preludin, and tuinal, all Schedule II Controlled Substances. 21 U.S.C. § 846. Counts II-IX charge them with distributing preludin and tuinal, and Counts X-XXIV charge them with distributing dilaudid. 21 U.S.C. § 841(a)(1).

This indictment grew out of investigations by the Maryland State Police and the Drug Enforcement Administration (DEA) of two Maryland pharmacies: Fenwick Pharmacy, Inc., in Ocean City, Maryland, and Lawson & Sons Pharmacy, Inc., in Hyattsville, Maryland.⁴ In brief, the indictment charges that during the period from October, 1976 through February, 1979, defendant Lawson filled fictitious prescriptions, written by Dr. Lynn H. Possinger of Philadelphia, and transferred the controlled substances to defendant Smith. Similarly, defendant Lane is alleged to have filled fictitious prescriptions during the period from December, 1977 through February, 1979, written by Dr. Marshall D. Nickerson of Washington, D. C., and to have transferred the controlled substances to defendant Smith.

Defendants' motion to dismiss focuses primarily upon the appearance of Robert Sampson before the indicting grand jury on August 1, 1979. Sampson, a registered pharmacist and an employee of Fenwick Pharmacy, Inc., had testified before a prior grand jury on November 8, 1978. His testimony before both grand juries concerned whether defendant Lawson had attempted to verify the legitimacy of Dr. Possinger's prescriptions for controlled substances prior to their being filled at Fenwick Pharmacy, Inc.⁵

The transcript of the November 8, 1978 grand jury proceedings indicates that Sampson testified that Lawson had told him that, prior to filling Dr. Possinger's prescriptions, Lawson had called both the doctor's office and the Philadelphia Police Narcotics Squad. (Sampson Grand Jury Testimony, November 8, 1978, at 11). Sampson also testified that he was present when some of the calls were made. (Sampson Grand Jury Testimony, November 8, 1978, at 20-21). Subsequently, the Assistant United States Attorney in charge of the case^5a subpoenaed the telephone records of Fenwick Pharmacy, Inc., (See Paper No. 30, Exhibit B), and had DEA Compliance Officer Wilbur N. West prepare a summary of the relevant calls (See Paper No. 30, Exhibit C). These records show that on October 29, 1976, four telephone calls were placed from Fenwick Pharmacy, Inc., to numbers in Philadelphia: Two calls to Dr. Possinger's office; one call to Philadelphia's municipal information number, and one call to the Philadelphia Narcotic Squad.⁶

Immediately before Sampson's August 1, 1979, grand jury appearance, a DEA compliance officer read to the jurors Sampson's testimony from November 8, 1978. Thereafter, the Assistant United States Attorney called Sampson to testify and undertook to discredit Sampson regarding Lawson's alleged calls to Philadelphia. (Sampson Grand Jury Testimony, August 1, 1979, at 17-23, 34-36, 58-59, 63-64, 96-98). At no time did anyone from the government give to the grand jury Officer West's summary of Fenwick Pharmacy's telephone records, or even reveal to the grand jury that the calls had been made.⁷ Thus, rather than introducing the telephone records to corroborate Sampson's testimony concerning the phone calls, the Assistant United States Attorney embarked upon a grueling cross-examination of Sampson, apparently designed to give the jurors the impression that Lawson had never called Philadelphia and that Sampson was trying to cover for him.

Defendants contend that the prosecutor's conduct was not simply a matter of failing to present known, exculpatory evidence to the grand jury. Rather, they assert, it was an affirmative attempt both to discredit Sampson and to turn exculpatory evidence into inculpatory evidence. Defendants also point out that Sampson's testimony was material because his was the only live testimony relating directly to Lawson's activities at Fenwick Pharmacy, Inc.⁸

While arguing that the telephone records were not material to the indictment because other witnesses testified before the grand jury about Lawson's activities at Fenwick Pharmacy, Inc., and asserting that the records are not themselves exculpatory, the government declined to present evidence at the motions hearing rebutting the inference that the Assistant United States Attorney's examination of Sampson constituted a deliberate effort to place false and misleading evidence before the grand jury. Thus, in the absence of a sufficient government explanation, the court finds that the prosecutor's questions to Sampson were deliberately misleading and calculated to create a false impression on the grand jury.

II. The "Aggravating Circumstances"

Conceding the impropriety of the Assistant United States Attorney's actions,⁹ the government nevertheless contends that any dismissal should be without prejudice to subsequent reindictment. The government maintains that resubmitting the matter to a new grand jury would eliminate any infringement of defendants' rights because the new grand jury would be "untainted," and the exculpatory evidence would be presented for its consideration. The government further notes that since the pretrial process has been completed in this case, it would not have to be repeated if a new indictment were returned against defendants.

In response, defendants argue that the prosecutorial misconduct regarding Sampson was compounded by the following "aggravating circumstances":

1. The thirty-seven (37) month "delay" between the beginning of the investigation and the filing of the indictment.

2. The use of administrative inspection warrants to gather evidence for a criminal prosecution.

3. The government's transfer of information subpoenaed by the first grand jury to subsequent grand juries without an order under Rule 6(e), F.R.Crim.P.

4. Disclosure by Officer West to a representative of the Maryland Attorney General of a DEA investigative synopsis containing information that was presented to the indicting grand jury, without a Rule 6(e) order.

Although the court concludes that none of these factors alone entitles defendants to a dismissal with prejudice, their impact, if any, will be considered as part of the totality of the case.

A. Pre-indictment Delay

The issue of pre-indictment delay was also raised by defendants in a separate motion to dismiss. Based on the evidence adduced at the hearing of September 18, 1980, the court concludes that defendants are not entitled to a dismissal of the indictment, with prejudice, on the ground of preindictment delay. The court finds that the "delay" was not the result of a government attempt to achieve a tactical advantage. To the contrary, the evidence establishes that this case was given low priority because the DEA investigators did not believe that Lawson was involved in an illegal narcotics operation prior to the arrest of Lane by the Maryland State Police in February, 1979. Further, defendants have suffered no actual prejudice in terms of their putting on a defense on the merits. See, e. g., United States v. Lovasco, 431 U.S. 783, 789-90, 795-96, 97 S.Ct. 2044, 2048, 2051, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 322-24, 92 S.Ct. 455, 464-65, 30 L.Ed.2d 468 (1971).

B. The Administrative Inspection Warrants

On July 9, 1979, DEA Compliance Officer West applied for administrative inspection warrants, pursuant to section 510 of the Comprehensive Drug Abuse Control Act of 1970 (Drug Control Act), 21 U.S.C. § 880, purportedly to inspect Lawson and Sons Pharmacy, Inc., and Fenwick Pharmacy, Inc., for violations of the Drug Control Act's record keeping requirements. The administrative warrants were executed on July 9, 1979, and a search for and seizure of records kept in the pharmacies was conducted by DEA personnel.

At the hearing of September 18, 1980, it was established through the testimony of Officer West that he applied for the administrative warrants at the request of the Assistant United States Attorney, who was conducting a criminal investigation of the defendants. It was further established that the government had made an institutional committment to the defendants' criminal prosecution on June 21, 1979, and that the administrative warrants were used solely to gather evidence for that criminal prosecution. The court also found that, at the time Officer West applied for the administrative warrants, neither the DEA nor the United States Attorney's Office had a civil or administrative purpose for the information they sought to obtain.

Defendants contend that these facts establish a violation of the principles enunciated in United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978). The issue in LaSalle concerned the enforcement of...