Appeal from a judgment convicting appellants of one count of conspiracy and two counts of obtaining controlled substances through false representation and forgery in violation of Title 21 U.S.C. §§ 843, 846, after a trial before a jury and Constance Baker Motley, Judge, United States District Court for the Southern District of New York. Appellant Pastor contends that the district court violated his Sixth Amendment right to be present at the trial when it empaneled the jury during his unexcused absence. Both appellants claim that the authority of the Attorney General of the United States to control substances pursuant to Title 21 U.S.C. § 811 is an unconstitutional delegation of legislative power. Affirmed.
Mansfield, Van Graafeiland, Circuit Judges, and Carter, District Judge. Van Graafeiland, Circuit Judge, concurring in part and dissenting in part.*fn*
MANSFIELD, Circuit Judge:
Appellants Edward Pastor and Martin Weiner were convicted of obtaining and conspiring to obtain controlled substances through false representation and forgery in violation of 21 U.S.C. §§ 843, 846 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Act"), after a trial before a jury and Judge Constance Baker Motley of the Southern District of New York. Pastor was sentenced to concurrent terms of six months and four years. Execution of the four-year term was suspended, he was placed on probation for five years, and he was fined $5,000. Weiner was sentenced to a six-month term, imposition of which was suspended, placed on probation for two years, and fined $3,000. We affirm.
Only a brief summary of the underlying offenses is necessary to resolve the issues raised on appeal. Prior to June, 1973, Pastor and Weiner, pharmacists in the Philadelphia area, had been dealing in large quantities of anoretic drugs known as phendimetrazine and phentermine. These drugs are often prescribed for use in weight reduction programs, but are also in demand for illicit purposes because they have qualities similar to amphetamines ("speed"). Formerly these drugs could be obtained by pharmacists without complying with the regulations of the Act, 21 U.S.C. §§ 821, et seq. However, on June 15 and July 6, 1973, respectively, these drugs were placed on the schedules of controlled substances by order of the Attorney General pursuant to § 811 of the Act. Phendimetrazine was placed in Schedule III and Phentermine in Schedule IV, 21 U.S.C. § 812.
Thereafter, Pastor and Weiner continued to purchase these drugs from Charles Fernald and Douglas Berry, partners in Wingate Sales Corporation, a New York City drug distribution company. Each transaction was recorded by Fernald and Berry on invoices bearing the name of one Dr. Horace Johnson, a Philadelphia physician who had no knowledge of the transactions. In October, 1973, Pastor ordered from Fernald 250,000 capsules of phendimetrazine which Fernald obtained from Vitarine Corp., a Long Island drug manufacturer. The next month, however, Fernald informed Pastor and Weiner that Vitarine would no longer supply through him such large quantities of the drugs without a written request from a physician. Pastor then sent to Fernald a letter purporting to be from Dr. Johnson, which contained Dr. Johnson's drug registration number and a request to ship the capsules. In fact, the stationery and the signature had been falsified by Pastor. Fernald relayed the letter from New York to Vitarine in Long Island, and six shipments totalling 1,200,000 capsules were sent by the company to a Philadelphia terminal. There, Pastor, posing as Dr. Johnson, received the shipments and Pastor and Weiner paid Fernald in cash for each shipment.
On April 18, 1974, Pastor sent Fernald a second forged letter ordering an additional 1,000,000 phentermine capsules which were sent by Vitarine to Pastor who then paid Fernald.
The jury convicted appellants of two counts, one charging violation of 21 U.S.C. § 843, which prohibits the acquisition of a controlled substance by " misrepresentation, fraud, forgery, deception, or subterfuge," and the other charging conspiracy.
TPastor's Sixth Amendment Claim
The first issue is whether Judge Motley violated Pastor's Sixth Amendment right to be present at his trial when she empaneled the jury in his absence on the first morning of the trial after Pastor failed to appear and advised the court that he was ill. Resolution of this issue depends upon whether the district court's finding that Pastor had voluntarily and without justification absented himself from the trial was clearly erroneous, and whether the court's decision to commence the proceedings was an abuse of discretion.
It is settled beyond dispute that an accused has a constitutional right to be present at all stages of his trial, Taylor v. United States, 414 U.S. 17, 38 L. Ed. 2d 174, 94 S. Ct. 194 (1973), F.R.Cr.P. 43(a), including the empaneling of the jury, United States v. Toliver, 541 F.2d 958 (2d Cir. 1976); United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1018 (1969). However, it is equally well settled that the defendant may waive this right by voluntarily and deliberately absenting himself from the trial without good cause, United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972); United States v. Taylor, 478 F.2d 689 (1st Cir.), aff'd, 414 U.S. 17, 38 L. Ed. 2d 174, 94 S. Ct. 194 (1973); United States v. Miller, 463 F.2d 600 (1st Cir.), cert. denied, 409 U.S. 956, 93 S. Ct. 300, 34 L. Ed. 2d 225 (1972); United States v. Marotta, 518 F.2d 681, 684 (9th Cir. 1975); Government of Virgin Islands v. Brown, 507 F.2d 186, 188-90 (3d Cir. 1975); see Illinois v. Allen, 397 U.S. 337, 343, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970), either before or during trial, United States v. Peterson, 524 F.2d 167, 183-86 (4th Cir. 1975), cert. denied, 423 U.S. 1088, 96 S. Ct. 881, 47 L. Ed. 2d 99 (1976).
"A defendant who deliberately fails to appear in court does so voluntarily, and thus the important question is whether his absence can be considered a 'knowing' waiver. We hold that it can. The deliberate absence of a defendant who knows that he stands accused in a criminal case and that the trial will begin on a day certain indicates nothing less than an intention to obstruct the orderly processes of justice. No defendant has a unilateral right to set the time or circumstances under which he will be tried." United States v. Tortora, supra, 464 F.2d at 1208.
Where the court finds that the defendant has voluntarily absented himself from the proceedings, it may decide to proceed in his absence only after balancing a "complex of issues" including the additional burdens, waste and expense inflicted upon the court, government, witnesses, and co-defendants, and the public's interest in seeing the accused brought to trial as well as the court's responsibility to do so speedily. United States v. Tortora, supra; United States v. Peterson, supra. While the Sixth Amendment demands that courts give the utmost solicitude to the defendant's right to be present at each stage of trial, it does not require the trial judge to accept at face value a defendant's claim of inability to appear in court, particularly where other defendants are involved, United States v. Tortora, supra, 464 F.2d at 1210, and where the government has spent considerable time, energy and money in preparing for trial and assembling witnesses and a panel of veniremen in the expectation that trial will proceed as scheduled. Cf. United States v. Wilson, 421 U.S. 309, 318, 44 L. Ed. 2d 186, 95 S. Ct. 1802 (1975).
The decision as to whether the defendant's voluntary absence from the trial amounts to a waiver is thus vested in the sound discretion of the trial judge, who is usually in a superior position to evaluate the evidence, including witnesses' credibility, because of familiarity with the background and circumstances. Moreover, where an evidentiary hearing is conducted to examine these circumstances, the trial judge's findings which form the basis of his or her decision on the issue will not be disturbed unless found to be clearly erroneous. See United States v. Lucchetti, 533 F.2d 28, 36 (2d Cir. 1976); United States ex rel. Delle Rose v. LaVallee, 468 F.2d 1288, 1290 (2d Cir. 1972), cert. denied, 414 U.S. 1014, 94 S. Ct. 380, 38 L. Ed. 2d 251 (1973), reversed on other grounds, 410 U.S. 690, 93 S. Ct. 1203, 35 L. Ed. 2d 637; 3 Wright, Fed. Practice and Procedure, § 675, p. 130 (1969).
In the present case the question of whether Judge Motley abused her discretion in concluding that Pastor's absence amounted to a waiver entitling her to proceed with the trial, or based this conclusion on any clearly erroneous material findings, requires us to review the background. In 1966 Pastor suffered a heart attack and in 1968, 1972 and 1974 he was hospitalized for varying periods suffering from angina pectoris, which refers to chest pains often due to coronary disease. However, since his 1966 attack Pastor has never suffered another heart attack. Following the indictment of Pastor and Weiner on July 31, 1975, Pastor was arraigned on August 18, 1975. On September 10, complaining of chest pains, he went into the hospital where he remained until September 22, when his counsel appeared before Judge Motley for a pretrial conference and furnished the court with a letter from Pastor's personal physician describing his heart condition and advising that surgery within the next three to four months was being contemplated. However, no such surgery was ever performed. After further postponements of pretrial motions at Pastor's request and over government objection, the case was scheduled for trial on January 15, 1976. However, trial was further postponed to February 13, 1976, when Pastor's counsel filed additional motions, including one for a medical examination to determine Pastor's fitness to stand trial.*fn1
On February 10, 1976, Pastor was examined by Dr. Leslie A. Kuhn, his doctor, and on February 11, 1976, by Dr. Meyer Texon, a physician selected by the government. When Judge Motley scheduled a hearing for February 17 to examine into Pastor's fitness to stand trial and directed that he be present for examination, particularly regarding his ability voluntarily to testify before the Federal Trade Commission for several hours on January 14, 1976, in spite of his claims of inability to stand trial, Pastor entered a Philadelphia hospital the day before his scheduled appearance. On February 17 Judge Motley went ahead with a full day's hearing at which the two doctors (Kuhn and Texon) testified at length with respect to the nature and extent of Pastor's heart condition and the reasons for his absence from court that day. The proof disclosed that the government's physician, relying primarily on Pastor's description of his own subjective symptoms (mostly pain), diagnosed his condition as "mild" congestive heart failure (which is not a heart attack but insufficient pumping of blood) and prescribed 7 to 10 days rest. Pastor's physician represented that several months confinement would be required.
On February 23, 1976, over the government's objection, Judge Motley granted the application for postponement of the trial and adjourned it to May 17, 1976. On March 1, 1976, Pastor was discharged from the hospital, despite the representations by his physician.*fn2 When, in March, Pastor's attorney became ill with a back ailment, Judge Motley advised that the trial would not be adjourned beyond May 17 and suggested, against the possibility that his attorney would be unable to participate, that Pastor obtain additional counsel (his own lawyer headed a firm in which there were several other lawyers) and that the court would pay the additional expense if Pastor could not afford it.
As the May 17, 1976, trial date approached, efforts were once again made by Pastor, who had not required any hospitalization since the earlier threat of trial, to postpone the trial. First, a three months postponement was sought on the ground that his attorney was convalescing from the back ailment. This was denied by the district court and we denied a writ of mandamus to compel a further adjournment. On May 9, 1976, Pastor was re-examined by Dr. Texon, the government physician, who reported that
"This patient now presents no evidence of congestive heart failure. His lungs are clear. He is able to ambulate at will in his own home and there is no evidence that infarction or tachy-arrhythmia has appeared at any time since he has been observed during the past ten years. The anginal pains are relatively stable and appear controlled with Nitrol ointment or Nitroglycerin. . . . I believe his cardiac reserve may be considered diminished but is presently adequate to allow him to be up and about, to travel by automobile, and to participate in a court proceeding. . . . Although this patient may experience chest pain in a court proceeding, I believe it is very unlikely and only remotely possible that a myocardial infarction will occur as a result of his antecedent atherosclerosis at precisely the time of his participating in a court proceeding. Further clinical manifestations of the patient's heart disease such as tachycardia or pulmonary congestion are possible - but these, in my opinion, can be successfully controlled as in the past and constitute no serious risk or hazard to the patient's health or life in view of the relatively good cardiac status of the patient at this time."
On May 14, 1976, Judge Motley found, based on reports by both physicians (Texon and Kuhn) and the evidence taken at the hearing of February 17, "that Mr. Pastor is able to withstand the stress of participation in a criminal trial, and to assist in his own defense, without grave risk to his life or health." Recognizing that both doctors had predicted an increase in pain to Pastor from the stress of trial, Judge Motley ordered that trial proceed for only four hours per day, including recesses, and provided for the presence of Pastor's physician and a registered nurse, and for periodic examinations during the course of the trial. In addition Judge Motley specified that there would be "such recesses as are required to enable Mr. Pastor to rest outside the courtroom and to receive medication," that he would be examined every two days by Dr. Texon to assure "that his health is not being seriously affected by his presence at the trial," and that Pastor's doctor could be present to conduct his own examination.
On Monday, May 17, Pastor appeared at court for hearings on pretrial suppression motions. Because of the four-hour per day limitation, the hearings were suspended and court was adjourned at 1:00 P.M., with directions to return at 9:00 A.M. on the following morning for the selection of a jury from the large panel of veniremen who had been kept waiting on Monday. However, on the following morning, May 18, neither Pastor nor his attorney appeared. Instead, his attorney's associate counsel informed Judge Motley that the defendant was suffering from a heart problem and that his wife had given him oxygen but could not get him clothed. However, the lawyer failed to present to or obtain for the court a doctor's statement, either written or oral, nor did he state whether Pastor had been examined by a physician or admitted to a hospital. ...