UNITED STATES v. LARTEY No. 974, Docket 82-1374.
716 F.2d 955 (1983)
UNITED STATES of America, Appellee, v. Noble Adjin LARTEY, Appellant.
United States Court of Appeals, Second Circuit.
Decided August 22, 1983.
Philip Le B. Douglas, Asst. U.S. Atty., S.D.N.Y., New York City (John S. Martin, Jr., U.S. Atty., S.D.N.Y., Gerard E. Lynch, Asst. U.S. Atty., New York City, of counsel), for appellee.
Before KAUFMAN and KEARSE, Circuit Judges, and MacMAHON, District Judge.
MacMAHON, District Judge.
Noble Adjin Lartey, a licensed pharmacist, appeals from a judgment of conviction on a six-count indictment entered in the United States District Court for the Southern District of New York after a jury trial before Edmund L. Palmieri, Judge.
Count 1 charged Lartey with conspiracy to distribute and dispense, and possess with intent to distribute and dispense, approximately 751,400 Gluthethimide ("Doriden") tablets and 695,000 Empirin with Codeine No. 4 ("Empirin") tablets, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) & 846 (1976). Counts 2, 3 and 4 charged him with distributing, and possessing with intent to distribute, large quantities of Doriden and Empirin in 1980, 1981 and 1982, respectively, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) (1976) and 18 U.S.C. § 2 (1976). Counts 5 and 6 charged him with falsifying records required to be made and kept by pharmacists, in violation of 21 U.S.C. § 843(a)(4)(A) (1976), specifically, by keeping forged prescriptions for Doriden and Empirin (Count 5) and by making false reports that these drugs had been stolen (Count 6).
Lartey asserts several grounds for reversal. He argues that the government abused the grand jury process, in violation of his Fourth Amendment rights. He contends as to Count 6 that his acts did not violate the applicable statute and that the theft report forms upon which his conviction was based were obtained by an unlawful search. In addition, he claims that Counts 2 through 4, charging illegal distribution of Doriden and Empirin, were multiplicious. Finally, he argues as to all counts that Judge Palmieri's charge to the jury was "palpably biased in favor of the government."
We affirm the judgment of conviction except as to Count 6, which we reverse and remand for further proceedings respecting the validity of the search of Lartey's briefcase.
There was evidence from which the jury could have found the following facts:
Doriden and Empirin, when taken together, are highly addictive and extremely dangerous. They induce a potent "high" and are used by addicts as an inexpensive substitute for heroin. In March 1982, a drug wholesaler, aware of the common abuse of these drugs, noticed that Lartey, a new customer, was ordering suspiciously large quantities of Doriden and Empirin for three pharmacies owned and controlled by him — Grand General and Ascot pharmacies in The Bronx, and Hillside Pharmacy in Manhattan.
The DEA commenced an audit of the pharmacies' records, starting with Grand General. Wholesale invoices were compared with prescription files. The results were startling. Lartey's pharmacies had received over 750,000 Doriden tablets and 695,000 Empirin tablets from March 1980 through March 1982. Over one million tablets were missing, for only 20% of the tablets received could be accounted for by prescription, and, even then, 95% of the prescriptions were written by a single physician, James E. Wesley.
Lartey obstructed the investigation from the outset. At a meeting with DEA investigators on March 24, 1982, he claimed that he had transferred Doriden and Empirin from Hillside and Ascot to Grand General, but said he was unable to produce underlying records. Two days later, however, Lartey produced records, purporting to be those of Hillside and Ascot, documenting transfers of Doriden and Empirin tablets to Grand General. These records were obviously and crudely falsified, and, even then, accounted for only a fraction of the missing tablets. The falsity of the records was further
During his initial interview, Lartey attempted to explain the missing tablets by claiming that two burglaries had occurred at Grand General. Yet, he admitted that he had failed to report the burglaries as required by state and federal law. Similarly, on March 29, 1982, Lartey told an investigator that Grand General had been burglarized once again on the prior evening.
The evidence gathered at this preliminary stage of the investigation of one of the three pharmacies — Grand General — thus revealed that Lartey was distributing tens of thousands of highly-addictive and dangerous tablets every month and had to be stopped immediately. It was also learned that there was a danger of flight, for Lartey was a citizen of Ghana, had children and other family there, travelled extensively, and had acquired a fortune, apparently from drug dealing. Moreover, he was attempting to cover up his unlawful drug business by falsifying records, claiming and even staging sham burglaries, and destroying evidence. It was reasonably clear also that the investigation of the other two pharmacies — Hillside and Ascot — would be met with a similar pattern of obstruction and that Lartey might fabricate a defense by shifting records among his three pharmacies.
Confronted with these exigent circumstances, in April 1982, the government decided not to undertake a lengthy grand jury investigation but to arrest Lartey immediately. Accordingly, on April 15, 1982, a complaint was filed charging Lartey with conspiracy to violate the narcotics laws; a warrant for his arrest was obtained; and two forthwith grand jury subpoenas duces tecum, returnable at 4:00 P.M. that day, were issued directed to the custodians of records at the Hillside and Ascot pharmacies. These subpoenas called for "prescription files, inventories, prescription log books, reports of thefts," and other records concerning the receipt and distribution of controlled substances by Lartey's pharmacies. Typical of subpoenas duces tecum issued in the Southern District of New York, they bore the following legend:
Lartey was expected to be at Grand General at 2:00 P.M., but in order to give the pharmacists time to gather the records and yet deny Lartey an opportunity to tamper with them, the agents were directed not to serve the subpoenas before 2:00 P.M., but to wait until after Lartey's anticipated 2:00 P.M. arrest. The plan, however, went awry. Lartey did not appear at Grand General until shortly before 4:00 P.M. He was arrested immediately. Shortly thereafter, the subpoenas were served on the supervising pharmacists at the Ascot and Hillside pharmacies.
The agents were unarmed, and no one was threatened with contempt or other penalties for failure to comply. Quite the contrary. One agent informed Marella, the supervising pharmacist at Ascot, of his options: he could turn the subpoenaed records over to the agents; bring them to the grand jury personally; or decline to turn them over at all. The premises were not searched, and the agents informed Marella that they had no power to enforce the subpoenas.
The agents granted Marella's request to telephone Lartey and advised that Lartey could be reached at Grand General. Marella tried but was unsuccessful. Marella then was allowed to telephone the pharmacy's attorney. Marella did so and then told the agents that there would be no problem, turned the records over to them, and they were transported at once to the United States Attorney's office.
The subpoena directed to Hillside Pharmacy was served upon the supervising pharmacist, Lucci, at 3:50 P.M., shortly after Lartey's arrest. Lucci attempted unsuccessfully to telephone Lartey and then asked what the consequences would be if he did not comply with the subpoena. One
Hillside was not searched. Instead, as Lucci testified, "they asked and we gave them." Only corporate records were produced, and they were taken by the agents to the United States Attorney's office.
The records from Hillside and Ascot, along with those obtained from Grand General in March 1982, were kept in the United States Attorney's office, where they were examined by a DEA investigator. Pressed by the Speedy Trial Act, the government obtained a one-count indictment, containing a bare-bones conspiracy charge, on May 11, 1982 before the grand jury had completed its investigation. The records were further analyzed and, when the government was otherwise prepared, all of Lartey's records were presented to the grand jury on July 1, 1982 resulting in the filing of the instant six-count superseding indictment.
During its investigation, the government retained a recently retired Internal Revenue Service agent, Eugene Moran, to analyze Lartey's finances. This analysis was compiled for presentation to the grand jury and to enable Moran to testify as an expert at trial. Moran reviewed signature cards, monthly statements, cancelled checks, and deposit tickets for three checking accounts that Lartey maintained.
The evidence at trial firmly established that Lartey had distributed Doriden and Empirin unlawfully for a period of two years while fully versed in the laws pertaining to controlled substances and aware of the widespread abuse of those drugs. Moreover, it is clear that he attempted to conceal this illicit activity by failing to keep required records, falsifying prescriptions, and fabricating evidence. The proof also showed that, upon becoming aware of the DEA investigation, Lartey took numerous steps to impede it, including preparing false theft report forms to account for the "missing" drugs.
Additional facts are set forth below as they relate to Lartey's claims on appeal.
1. Abuse of the Grand Jury Process.
Lartey argues that the government abused the grand jury process by obtaining the pharmacies' documents pursuant to "forthwith" grand jury subpoenas duces tecum, in violation of his Fourth Amendment rights. He also contends that the government's use of Moran to analyze financial records which had been presented to the grand jury violated Rule 6(e), Fed.R.Crim.P., which mandates grand jury secrecy. We find both claims without merit.
(a) Use of the "Forthwith" Subpoenas.
Lartey contends that the government violated his Fourth Amendment rights by serving forthwith grand jury subpoenas duces tecum immediately after his arrest. In particular, he claims that the subpoenas were "a subterfuge and a substitute" for a search warrant, which would have required a showing of probable cause and the interposition of a neutral judicial officer between the investigators and Lartey. In support of his argument that the subpoenas were vehicles for the government unlawfully to obtain evidence crucial to his case, rather than legitimate instruments of a grand jury inquiry, Lartey notes that the subpoenaed records were not presented to the grand jury until two and one-half months after they were produced. He also stresses that he was denied an opportunity to test the validity of the subpoenas because he was arrested before the subpoenas were served and before the 4:00 P.M. return time of the subpoenas. Finally, Lartey contends that the Ascot and Hillside subpoenas were served in such a coercive fashion that consent was not voluntary but compelled, resulting in a de facto search and seizure.
Lartey's claims were considered and rejected by Judge Haight, who, after conducting an evidentiary hearing, found that the
We have never addressed the question of the validity of "forthwith" grand jury subpoenas, although district courts within this circuit have confronted the issue. See In re Nwamu,
The instant case involves records of corporations. Although the Fourth Amendment protects corporations from subpoenas duces tecum that are unreasonably broad, Oklahoma Press Publishing Co. v. Walling,
In light of the exigent circumstances shown here, we find no error in Judge Haight's finding that the government's use of forthwith grand jury subpoenas was entirely lawful. The investigators had substantial reason to believe, from their preliminary audit of Grand General Pharmacy, that Lartey was engaged unlawfully in distributing and dispensing Doriden and Empirin and that the three pharmacies were an integral part of his illicit business. The subpoenas sought records of the Ascot and Hillside pharmacies pertaining to controlled substances, the ownership of the pharmacies, and financial data for the period September 1980 through the date of the subpoenas. The materiality and reasonableness of these requests are readily apparent; records pertaining to controlled substances were required to be kept and would reveal false reports. Therefore, the subpoenas, standing alone, were entirely proper and not overly broad. Indeed, had Lartey contested the validity of the subpoenas, he would not have succeeded. There was no valid objection that could be raised to the compelled production of these corporate records.
That the subpoenas, in effect, required the production of the pharmacies' records "forthwith," while Lartey was under arrest, does not alter our conclusion. Judge Haight found that the government was motivated by reasonable and good faith concerns that Lartey would attempt to tamper
We also reject Lartey's contention that the supervising pharmacists did not comply with the subpoenas voluntarily but were coerced. The agents did not seize the records and never demanded that they be turned over to them. Rather, the agents informed the pharmacists of their options, including taking the records personally to the grand jury. Moreover, the pharmacists were allowed to communicate with attorneys and others regarding how to respond to the subpoenas. The agents made no threats, and there is no evidence that they otherwise acted aggressively or overbore the will of the pharmacists. One agent at the Hillside Pharmacy did direct the pharmacist's attention to boilerplate language on the subpoena regarding the sanction of contempt for failure to comply. The pharmacist, Lucci, testified, however, that while he did feel compelled by this language, he had not given the matter much thought and that the agents at Hillside were polite and uttered no threats. Based upon an examination of the totality of the circumstances, Schneckloth v. Bustamonte,
The case on which Lartey relies, In re Nwamu, supra, is clearly distinguishable, for there the agents serving the forthwith subpoenas enforced them with threats of contempt and physically removed subpoenaed items despite counsel's specific direction not to take them from the premises. Indeed, the court in Nwamu found that the agents had treated the subpoenas as though they were search warrants and had conducted a warrantless seizure. There is no such finding here. Nor is there a basis for one.
Lartey's final argument is that the delayed presentation of the pharmacies' records to the grand jury evidences an illicit purpose behind the subpoenas. The pharmacies' records were not submitted to the grand jury that returned the original indictment against Lartey. Rather, they were studied by the United States Attorney's office for a period exceeding two months and then submitted to the grand jury. There was a valid reason for this delay. The government, having arrested Lartey on a complaint, was under the pressure of the Speedy Trial Act to indict him, and the initial indictment was, as the government concedes, of the "bare bones" variety, containing only a single-count conspiracy charge. This was then superseded by a six-count indictment after large quantities of material had been analyzed and presented to the grand jury. Judge Haight found that the government's actions were proper and that it is a legitimate and common practice to analyze subpoenaed documents to ensure a coherent presentation to the grand jury. That finding is not clearly erroneous. See Robert Hawthorne, Inc. v. Director of Internal Revenue,
In summary, we conclude that the government did not violate the Fourth Amendment nor otherwise abuse the grand jury process by issuing the forthwith subpoenas in its investigation of Lartey.
(b) Employment of Moran as a Government Expert.
Prior to trial, the government retained Eugene Moran, a specialist in investigative accounting, as an expert consultant and witness. As noted above, Moran reviewed signature cards, monthly statements, cancelled checks and deposit tickets for three checking accounts that Lartey maintained. Moran did not review any other documents submitted to the grand jury, nor was he exposed to transcripts of testimony by grand jury witnesses.
During the period that Moran had access to Lartey's bank records, he was employed exclusively by the government. The records were kept in a secure location in the United States Attorney's office, and Moran did not discuss them with anyone other than Assistant United States Attorney Douglas and agents assisting Douglas in the investigation. A portion of Moran's analysis of the records was submitted to the grand jury that returned the superseding indictment, and Moran testified as an expert at trial. He did not otherwise participate in the grand jury's investigation of Lartey.
Lartey argues that the indictment should be dismissed because Moran's activity violated Rule 6(e), Fed.R.Crim.P., which imposes a general rule of secrecy regarding "matters occurring before the grand jury."
Initially, it is difficult to see how Lartey was prejudiced, even if we assume that the government breached grand jury secrecy. In Douglas Oil Co. v. Petrol Stops Northwest,
It is equally unlikely that disclosure of the bank records to Moran undermined the remaining policy consideration underlying grand jury secrecy — protection of the grand jury from outside interference. This court has indicated on several occasions that documents are not cloaked with secrecy merely because they are presented to a grand jury. See United States v. Weinstein,
In any event, we conclude that Moran's employment falls within the "government personnel" exception to Rule 6(e), which permits disclosure of grand jury proceedings to
There is nothing in the legislative history of the 1977 amendments to Rule 6(e) permitting disclosure to "government personnel" to indicate that the term is limited to permanent civil service employees of the United States. Rather, this exception to the rule of grand jury secrecy was adopted to override decisions "`highly restrictive of the use of government experts'" in grand jury investigations. In re Gruberg,
2. Lartey's Claims Regarding Count 6.
Lartey was convicted on Count 6 of the indictment, which charged him with furnishing false information on, and omitting material information from, two DEA theft report forms, in violation of 21 U.S.C. § 843(a)(4)(A) (1976). Urging reversal, he contends (1) that he did not violate the applicable statute because he did not file the forms with the DEA, and (2) that the agents seized the forms unlawfully by a warrantless search of his briefcase.
The first ground is spurious. Lartey misreads the statute. The statute, 21 U.S.C. § 843(a)(4)(A) (1976), is not limited
Lartey's second argument — that the search of his briefcase was unlawful — poses a substantial question. Lartey's motion to suppress was denied by Judge Haight. The affidavits submitted conflict respecting the circumstances surrounding Lartey's arrest at the Grand General Pharmacy and the subsequent seizure of the theft report forms from his briefcase.
Everett Hatcher, the arresting agent, averred that:
The agents conducted an immediate "pat down" search and placed Lartey's briefcase on the floor next to him. When questioned regarding his inventory of controlled substances, Lartey responded that he needed the records in his briefcase which he opened with the agents' permission. The agents saw business records, an appointment book and personal items in the briefcase. Lartey then opened several folders containing business records and handed a theft report form to one of the agents who read it. The agents then took Lartey to the DEA's New York office, placing the briefcase in the trunk of their automobile. After arriving at DEA headquarters, Lartey asked to open the briefcase in order to consult an appointment book, and permission was granted. On numerous occasions thereafter, various articles from the briefcase were returned to Lartey upon his requests.
Lartey's account in two affidavits differs in every material respect from Agent Hatcher's. Lartey avers that he did not open the briefcase, nor show the agents any items which it contained either at the time of his arrest or thereafter. According to him, the briefcase was opened for the first time at DEA headquarters after the agents took it from his possession while he was under arrest and handcuffed. An inventory search of the briefcase was conducted at that time. Lartey swears that he retained possession of the briefcase while he was transported to DEA headquarters and denies showing the agents any business records or reports contained in the briefcase, including theft report forms.
Judge Haight did not hold an evidentiary hearing to resolve this factual dispute. Rather, for purposes of the motion, he assumed the truth of the facts stated in Lartey's affidavits and held that the search of the briefcase was a valid search incident to arrest. Judge Haight noted that "[t]he Second Circuit has consistently upheld warrantless searches, incident to arrest, of briefcases held by the accused at the time of arrest, even after the accused and his briefcase are taken to headquarters, on grounds of convenience to all concerned as well as courtesy to the accused. See, e.g., United States v. Lam Muk Chiu,
The cases upon which Judge Haight relied, however, are of questionable validity in view of later decisions of the Supreme Court in United States v. Chadwick,
There is a difference, however, between the factors justifying or invalidating a warrantless search as an incident to a lawful arrest and those governing a search of the personal effects of a person under lawful arrest as part of a routine administrative procedure at the police or agency's headquarters incident to booking and incarcerating the suspect. Recently, in Illinois v. Lafayette, 462 U.S. ___, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), decided long after Judge Haight upheld the challenged search, the Supreme Court held that "it is not `unreasonable' for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures. Id. at ___, 103 S.Ct. at 2611.
There appears to be no conflict in the affidavits that some sort of warrantless search of Lartey's briefcase occurred. There is no finding in the record, however, to enlighten us as to whether this search occurred at DEA headquarters or earlier, immediately after Lartey's arrest, or whether Lartey consented, or whether, absent his consent, it was incident to a lawful arrest, or whether it was part of a routine standardized administrative procedure for making a valid inventory of Lartey's belongings as an incident to booking and incarcerating an arrested person.
The validity of the challenged search cannot be determined without resolution by the district court of these issues of fact. Accordingly, we reverse the judgment of conviction on Count 6 and remand that count for further proceedings consistent with this opinion. If the court determines that the search was lawful, Lartey's conviction on Count 6 should be reinstated.
3. Remaining Claims.
Lartey argues that he was denied a fair trial because the court's charge was biased in favor of the government. He points to three passages in which the trial court informed the jury of conclusions which could be reached from the evidence.
We have held that:
Accord, Quercia v. United States,
Counts 2 through 4 of the indictment charged Lartey with distributing, and possessing with intent to distribute, large quantities of Doriden and Empirin during 1980, 1981 and 1982, respectively, in violation of 21 U.S.C. § 841(a). Lartey contends that the indictment is multiplicious, charging one offense in several counts, because his illegal distribution over a period of years constitutes "a single continuing crime." He argues for reversal on the ground that his conviction on multiple counts and his sentence to consecutive terms violate the double jeopardy clause. We reject this argument.
It is the role of Congress to define crimes and to determine the appropriate punishment for these offenses. Bell v. United States,
That each unauthorized delivery of a controlled substance violates § 841 is also apparent upon consideration of the Supreme Court's decision in Blockburger v. United States,
In Blockburger, the defendant was charged with violating a statute prohibiting the purchase, sale, dispensing, or distributing of various drugs except in or from the original stamped package. The defendant was found guilty on two counts which charged him with unlawful sales of morphine on successive days to the same purchaser. The Court rejected defendant's argument that these sales were a single offense, holding that:
In Santore, the defendant was charged with violating 21 U.S.C. § 174, a predecessor to § 841. That statute made it illegal to import, receive, conceal, buy or sell any narcotic drug contrary to law. Defendant was convicted on three counts of selling heroin on the basis of three sales that he made during the latter part of 1957. He argued that these sales were part of a continuous transaction and that it was improper to impose consecutive sentences for these violations. This court rejected these claims, holding that:
Counts 2 through 4 were not multiplicious, for each count required proof of distribution in different calendar years. See United States v. Edwards,
Accordingly, the judgment of conviction on Count 6 is reversed, and that count is remanded for further proceedings consistent with this opinion. In all other respects, the judgment of conviction is affirmed.
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