The opinion of the court was delivered by: DUFFY
The Grand Jury, in a forty-two count indictment, filed July 9, 1979, charged the defendants, William Krasnoff, Michael Castellon, Sr., Nam Jin Park, Joseph Gross, Terry Ardrey, Harry Hermon, Hokun Yeu, Michael Castellon, Jr. and Maureen Romanoff, with conspiring to distribute certain controlled substances together with the actual distribution thereof. Thereafter, a superseding indictment was filed naming Cesar Caoili as a co-conspirator, charging him with two substantive counts of distribution and also charging the defendant Krasnoff with engaging in a continuing criminal enterprise.
The Unity Medical Center, (hereinafter referred to as "Unity"), is located at 1846 Jerome Avenue in the Bronx and offers various medical services to Medicare, Medicaid and private patients. The facility is owned and operated by William Krasnoff who also serves as its president. The psychiatric unit of Unity, managed by Michael Castellon, Sr., employed Nam Jin Park, Joseph Gross, Harry Hermon, Hokun Yeu and Cesar Caoili as staff psychiatrists. The defendant Terry Ardrey, while apparently held out as a psychiatrist by the facility, is not a licensed psychiatrist. The remaining defendants, Castellon, Jr. and Romanoff, were non-professional employees of the facility.
The defendants Krasnoff, Gross, Yeu and Hermon have individually moved to dismiss the indictment or, in the alternative, for an order suppressing various evidence seized at the facility. Four defendants, Gross, Yeu, Caoili and Krasnoff, have moved for a severance. Finally, defendants Krasnoff, Hermon and Gross seek various discovery ranging from the inspection of the Grand Jury minutes to a Bill of Particulars in order to ascertain the precise facts underlying the instant indictment.
The Government opposes these motions except insofar as it has already provided the defendants with certain discovery.
The superseding indictment filed herein contains forty-five counts. Count one, the conspiracy count, charges each of defendants with participating in a conspiracy to distribute certain controlled substances, to wit: tuinal and valium, for purposes other than legitimate medical treatment. More particularly, the conspiracy count of the indictment alleges fourteen separate overt acts committed in the Southern District of New York. In large part, these acts consist of various prescriptions for tuinal and valium issued by the defendants herein to agents of the Drug Enforcement Administration (hereinafter referred to as "DEA").
Count two charges that the defendant Krasnoff, as the president and principal operator of the facility, engaged in a continuing criminal enterprise by virtue of the illegal distribution of the drugs in issue and the derivation of profits therefrom.
Counts three through forty-one and count forty-five set forth various transactions in which one or more of the professional defendants and Krasnoff issued a prescription for the drugs in issue to a given patient. The remaining counts charge the non-professional employees, the Castellons, Maureen Romanoff and William Krasnoff, with the distribution of tuinal and valium.
Krasnoff attacks the instant indictment on two grounds. First, he argues that although paragraph 2 of the conspiracy count contains an "aiding and abetting" allegation as to him, this allegation is absent from the substantive counts in which he is named. He reasons that since he was not the doctor who actually wrote the prescriptions he was at best an aider and abettor in their issuance. He concludes that the failure of the indictment to expressly charge him with aiding and abetting in these substantive counts is a fatal defect warranting their dismissal as to him. Second, Krasnoff urges that counts two and forty-five of the indictment are based upon immunized testimony and, in any event, the facts alleged fail to support these charges.
It is clear that "a defendant may be indicted for the commission of a substantive offense and convicted solely as an aider and abettor even though not named as such in the indictment." United States v. Pellegrino, 470 F.2d 1205, 1209 (2d Cir. 1972), Cert. denied, 411 U.S. 918, 93 S. Ct. 1556, 36 L. Ed. 2d 310 (1973). See also United States v. McCambridge, 551 F.2d 865, 871 (1st Cir. 1977). Thus, the fact that Krasnoff is not specifically named as an aider and abettor does not preclude his conviction as such.
More importantly, however, Krasnoff labors under the misapprehension that his only potential criminal liability is as an aider and abettor. There appear to be sufficient facts alleged in the indictment which, if proven, would paint Krasnoff as a principal in the alleged substantive counts. Indeed, as the president and principal operator of the health facility, he was in charge of its operations. As such he may have been instrumental and directly involved in the issuance of the prescriptions.
Turning to Krasnoff's second attack upon the instant indictment, the salient facts are as follows:
On September 4, 1979, Krasnoff together with counsel, appeared at the office of the Assistant United States Attorney handling this matter. Before the meeting commenced the parties executed an agreement which provided:
With respect to the meeting of Peter M. Bloch, Assistant United States Attorney in the Office of the United States Attorney for the Southern District of New York ("Office") with William Krasnoff ("Client") to be held on September 4, 1979, the following understandings exist:
(1) Should any prosecution be brought or continued against Client by this Office, the Government will not offer in evidence on its direct case any ...