UNITED STATES v. LARTEY
716 F.2d 955 (1983)
UNITED STATES of America, Appellee,
v.
Noble Adjin LARTEY, Appellant.
No. 974, Docket 82-1374.
United States Court of Appeals, Second Circuit.
Argued March 8, 1983.
Decided August 22, 1983.
Simeon Golar, New York City (Peter R. Silverman, New York City, of counsel), for appellant.
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 was sentenced to five years' imprisonment and a twenty-year special parole term on Counts 2 through 4, with the prison sentences to run consecutively. He was sentenced to five years' imprisonment, to be followed by five years' unsupervised probation, on Count 1, and four years' imprisonment on each of Counts 5 and 6. The prison sentences on Counts 1, 5 and 6 are to run concurrently with each other and with the sentences imposed on Counts 2 through 4. In addition, Lartey was fined $15,000 on each of Counts 1 through 4 and $30,000 on each of Counts 5 and 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.
BACKGROUND
* Of the United States District Court for the Southern District of New York, sitting by designation.
1. Grand General and Hillside pharmacies were owned by Nadlar Drugs, Inc., of which Lartey was the sole shareholder. Ascot Pharmacy was owned by Uptown Drugs, Inc., which was also controlled by Lartey.
2. Subsequent to Lartey's conviction, Dr. Wesley was indicted on narcotics trafficking charges for selling sham prescriptions. Dr. Wesley pled guilty and is awaiting sentencing.
3. The subpoenaed documents were corporate records to which no Fifth Amendment privilege applied. Wilson v. United States,221 U.S. 361, 382, 31 S.Ct. 538, 545, 55 L.Ed. 771 (1911). Moreover, these documents were required to be "kept and be available ... for inspection and copying by" authorized DEA officials. 21 U.S.C. § 827(b). Thus, they were also "required records" whose production cannot be resisted on Fifth Amendment grounds. Shapiro v. United States,335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). 4. Lartey raises another issue regarding the grand jury process which is totally spurious. After the initial grand jury indictment of Lartey was filed on May 11, 1982 and during its continuing investigation of Lartey leading to the superseding indictment, the government caused the issuance of additional grand jury subpoenas on May 28. Lartey objected, and the government withdrew these subpoenas and obtained trial subpoenas pursuant to an order of Judge Haight. Lartey contends that this was an attempt by the government to use the grand jury for the illicit purpose of obtaining information in support of an already pending indictment. Since the grand jury subpoenas were withdrawn, we fail to see the relevance of this claim.
5. Rule 6(e) provides, in pertinent part:
"(2) General Rule of Secrecy. — A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.
(3) Exceptions.
(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to —
(i) an attorney for the government for use in the performance of such attorney's duty; and
(ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law."
6. For example, one of the passages Lartey cites concludes: "There has been a good deal of evidence in this case which would permit you to conclude that a large number of prescriptions that were filled in the defendant's pharmacy at various times were facially invalid."