United States v. Warren

• Decision Date: 05 January 1972
• Docket Number: Docket 71-1545.,No. 207,207
• Citation: 453 F.2d 738
• Parties: UNITED STATES of America, Appellee, v. Alois Peter WARREN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

453 F.2d 738 (1972)

UNITED STATES of America, Appellee, v. Alois Peter WARREN, Appellant.

No. 207, Docket 71-1545.

United States Court of Appeals, Second Circuit.

Argued October 8, 1971.

Decided January 5, 1972.

COPYRIGHT MATERIAL OMITTED

Irving Anolik, New York City (Sidney O. Raphael, Raphael, Searles & Vischi, New York City, of counsel), for appellant.

Walter J. Higgins, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for Southern District of New York, of counsel), for appellee; Charles B. Updike, John W. Nields, Jr., Asst. U. S. Attys., of counsel.

Before WATERMAN and SMITH, Circuit Judges, and ZAMPANO,^* District Judge.

J. JOSEPH SMITH, Circuit Judge:

Dr. A. Peter Warren appeals from a judgment of the United States District Court for the Southern District of New York (Constance Baker Motley, Judge), convicting him after an eight day jury trial on one count of conspiring to violate the federal food and drug laws relating to stimulant or depressant drugs and of four counts of selling, delivering, and disposing of amphetamine sulphate in violation of 21 U.S.C. §§ 321, 331(q) (2), 333 and 360a(b) (Supp. V 1969). Dr. Warren was sentenced to five years imprisonment on each count, to run concurrently, and was fined $10,000. On appeal he claims that the district court erred in numerous respects in the conduct of the trial. We find no error which warrants disturbing the verdict, and we affirm.

At the time of the events charged in the indictment, Dr. Warren was a duly licensed physician practicing in New York City. As a practitioner licensed by law to prescribe or administer depressant or stimulant drugs while acting in the course of his professional practice, Dr. Warren was exempt from the statutory prohibition against selling or disposing of amphetamines as long as he was acting "in the ordinary and authorized course of his business or profession. . . ." 21 U.S.C. § 360a(b) (Supp. V 1969). The government attempted to prove at trial that the sales alleged in the indictment had no medical basis and were economically motivated retail sales rather than treatments given in the course of a physician-patient relationship.

The government established its case through the testimony of several special agents of the Bureau of Narcotics and Dangerous Drugs. Richard Dreiwitz, an agent acting in an undercover capacity, was introduced to Dr. Warren at his office in November, 1970 by another patient of the doctor's. Dreiwitz mentioned that he needed a two week supply of good quality methamphetamine; without conducting a medical examination, Dr. Warren gave the agent two vials, which subsequent analysis revealed contained 30 cc of amphetamine sulphate each, and instructions on use.¹ Dreiwitz was to inject himself daily with a mixture of 2 cc's of the "meth," a vitamin solution and "PW-7." This last ingredient is procaine hydrochloride, a mild anesthetic.

Two weeks later, Dreiwitz bought another 60 cc of amphetamines from Dr. Warren's assistant.² On his third visit, Dreiwitz told the doctor that he didn't need the vitamins, as he only took the drug to help his performance (he was allegedly a musician). He requested enough amphetamine for four people for two weeks, claiming that some of his friends, whom Warren had never seen, wanted the injections too. He paid $900 for six 30 cc vials.

Less than a week later Dreiwitz, having arranged to record the subsequent conversation, telephoned Dr. Warren. Dreiwitz and the doctor negotiated a large sale of drugs; Dr. Warren agreed to give them to a friend of the agent's, who was to come to the doctor's office. Agent Robert Brown subsequently picked up six 30 cc vials. Thus, in a twenty day period, Dr. Warren sold Dreiwitz enough amphetamine sulphate for 240 injections.

Dr. Warren was indicted on January 26, 1971. He was arrested the next day, and his office was searched pursuant to a warrant. The search uncovered over one hundred 30 cc vials of unlabeled or mislabeled amphetamine sulphate. The doctor was brought to trial in May, 1971. The government's witnesses included a musician who had been misinformed by Dr. Warren about the content of the injections and who had, after several months of "treatment," been hospitalized for psychiatric reasons. Another patient, who had apparently become addicted to the injections, had never been told what sort of drug he had been receiving. An expert witness for the government testified that providing amphetamine to people who had not been medically examined, much less seen, went beyond any physician's proper relationship with a patient. This is particularly true when, as here, the drug was given for self-injection, a technique susceptible of abuse.

Warren claimed that he was entrapped and that he never sold amphetamine other than "in the course of his professional practice." He claimed that medical examinations were always done on patients and that Dreiwitz had assured him that he had recently seen another doctor. The defendant's expert witness testified that there were some approved medical uses for amphetamine; he agreed with the government's witness that a physical examination is a prerequisite to its use and that the drug ought not to be dispensed for self-administration. Both expert witnesses agreed that there was as of now no medically approved reason for long-term treatment with amphetamines.

The jury found Warren guilty on all counts. Appellant contends on appeal that he was deprived of his constitutional rights by numerous rulings of the trial court. He claims that the search and seizure of his drugs and patient records was illegal and that it was tainted by an incriminating form he was pressured to sign during the search; that a hearing ought to have been held on the admissibility of the tape recording of his conversation with Agent Dreiwitz; and that the court erred in admitting certain other evidence. He urges that the court committed error in sentencing him without a pre-sentence report and in refusing to pass on his post-trial motions. Last, he maintains that his guilt was not proved beyond a reasonable doubt. None of these claims is meritorious.

Warren claims that the search of his office and seizure of drugs and patient cards or records violated his Fourth and Fifth Amendment rights. The search was conducted pursuant to a warrant issued on the basis of a detailed affidavit from the agent who had retrieved Dreiwitz' drug order from Dr. Warren. The facts stated therein clearly constituted probable cause. The warrant named dangerous drugs and records of the purchase, sale, or other distribution of such drugs as the objects to be seized. Appellant claims that the agents rummaged through his office; the thoroughness of the search was necessitated by the discovery of numerous vials of amphetamine sulphate in boxes labeled "perfume" or "shaving lotion" stored in closets and drawers in the office and adjoining dark room. The agents did not go beyond the terms of the warrant, and their search did not violate the Fourth Amendment.

Warren claims that his Fifth Amendment rights were violated because the records seized were testimonial in nature. The records consisted of index cards with patient names and notations of the number of injections given, the dates and charges for them. They contained no other medical information. Hill v. Philpott, 445 F.2d 144 (7 Cir. 1971), held that business records seized by an Internal Revenue agent could not be used without violation of the defendant's Fifth Amendment rights. In that case, however, the records were personal business items; in this case, Dr. Warren was required under 21 U.S.C. § 360a(d) to make and keep records on acquisition and disposition of amphetamine. Such records, part of a regulatory scheme with public purposes, are not protected by the Fifth Amendment and are specifically excluded from the holding in Hill. 445 F.2d at 146. United States v. Kaufman, 429 F.2d 240, 247 (2d Cir.), cert. denied, 400 U.S. 925, 91 S.Ct. 185, 27 L.Ed.2d 184 (1970); Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). In any case, the records were used only to impeach Dr. Warren's testimony that he had dispensed amphetamine to only a small percentage of his patients. Under Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971), citing Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), this would have been proper even were the records improperly obtained.

Warren also claims that the court below committed error in not holding a hearing on the legality of the search and seizure. Judge Motley heard argument on the motion to suppress at a pretrial hearing and conference, and she wrote a memorandum opinion supporting her decision to deny the motion. Her decision that the issue did not warrant another hearing is within her discretion. United States v. Suarez, 380 F.2d 713 (2d Cir. 1967); United States v. Culotta, 413 F.2d 1343 (2d Cir.) cert. denied, 396 U.S. 1019, 90 S.Ct. 586, 24 L.Ed.2d 510 (1969). If the facts alleged, assuming they could be proven, would have justified granting the motion, then a hearing would have been more essential. Here the question was one of law, and the court treated it fully.

Appellant also argues that even if the search was otherwise valid, it was tainted by a "Voluntary Surrender of Narcotics Privileges" form which he signed in his office when the agents arrested him. The signer of the form consents to the government's seizure of narcotic drugs then in his possession and surrenders the right to dispense such drugs. The form states that the signer acts voluntarily, after being apprised of his rights, in an effort to show good faith in remedying an alleged failure to comply with federal laws on narcotic drugs. Warren claims that he was not advised of his rights before signing and that therefore the "confession" was coerced. The form is claimed to have prejudiced him in this trial because it gave the...