Appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Palmieri, Judge, for conspiracy to distribute and possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846; for distribution and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; and for falsifying records required to be made and kept by pharmacists, in violation of 21 U.S.C. § 843(a)(4)(A). Affirmed in part, and reversed and remanded in part.
Kaufman and Kearse, Circuit Judges, and MacMahon, District Judge.*fn*
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.
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.*fn1 The wholesaler, after telling Lartey of his intentions, informed the Drug Enforcement Administration ("DEA") of Lartey's excessive purchases.
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.*fn2 A prescription for Doriden was usually paired with one for an equal quantity of Empirin. Many prescriptions omitted information required by law, and some lacked the signature of the filling pharmacist; others were filed out of chronological sequence; and still others lacked the signature of the physician or had obviously been altered or forged. The inference of substantial drug trafficking compelled by this array was corroborated by unexplained expenditures and cash deposits from undisclosed sources.
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 established by two employees who worked at Grand General.
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:
"Please note. Delivery of the information identified above to any agent or investigator of the Drug Enforcement Administration for transmission to the Grand Jury will be deemed adequate compliance with the subpoena."
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 agent replied that he did not know but directed Lucci's attention to the language found on all subpoenas, which states:
"And for failure to attend and produce the said documents you will be deemed guilty of contempt of court and ...