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UNITED STATES v. SUGAR

April 3, 1985

United States of America,
v.
Leo Laszlo Sugar, Victoria Vamos, Gloria Reinhardt, and Nandor Retek, Defendants



The opinion of the court was delivered by: KRAM

KRAM, U.S.D.J.

MEMORANDUM OPINION AND ORDER

 The above-captioned action is before this Court upon defendant's omnibus motions for varied relief. For the reasons stated below, the motions are denied.

 - BACKGROUND -

 Dr. Leo Laszlo Sugar is a medical doctor licensed to practice medicine in the State of New York. he maintains medical offices at 400 East 77th Street in Manhattan. Gloria Reinhardt was Dr. Sugar's receptionist. Victoria Vamos and Nandor Retek also worked for Dr. Sugar in his medical offices.

 Dr. Sugar specializes in the treatment of obesity and in weight reduction ("bariatrics"). During the course of this practice, Dr. Sugar dispensed appetite suppressant medication ("narcotics") to his patients at his medical offices. Reinhardt, Vamos, and Retek, as part of their employment duties, assisted in the distribution of these narcotics.

 The anorectics dispensed in huge quantities at Dr. Sugar's offices include phendimetrazine, a Schedule III controlled substance, and phentermine, a Schedule IV controlled substance both of which are stimulants. These drugs may lawfully be dispensed directly to patients in the course of a medical practice.

 On May 25, 1983, William Hanlon, a Special Agent of the Drug Enforcement Agency ("DEA"), visited Dr. Sugar's offices, posing, under the alias Robert Connolly, as a prospective patient who wanted to lose weight. Hanlon was interviewed by a member of Sugar's staff, "Alex." and asked to fill out a medical questionnaire. He was then weighed. Alex recorded the weight on an index card with Hanlon's assumed name on it, and placed it, with others like it, in a large box on his desk. Another member of Sugar's staff, "Vicki," took Hanlon's blood pressure and then introduced him to Dr. Sugar. Dr. Sugar listened to Hanlon's heartbeat through a stethoscope for approximately five seconds asked him to breathe deeply once. Dr. Sugar then handed Hanlon a vial, which contained 36 phendimetrazine tablets, and asked for $40, telling Hanlon that subsequent visits would cost $20.

 On June 1, 1983, Hanlon returned to Sugar's office. Alex gave Hanlon his index card and introduced him to another member of Sugar's staff, "Gloria." Gloria asked Hanlon his weight and recorded his response on the index card. She then gave him a vial containing 36 phendimetrazine tablets and asked for $20. Hanlon asked for a second vial, which Gloria gave him for another $20.

 On June 3, 1983, Hanlon returned to Sugar's offices. Gloria asked him how many vials he wanted. Hanlon requested, and was given, three vials, each containing 36 phendimetrazine tablets, for $60.

 On September 19, 1983, Hanlon returned to Sugar's offices. Hanlon asked Gloria for, and was give, two vials of phendimetrazine tablets for $40. Hanlon then asked for "pink" pills. Gloria gave him 10 tablets, alter identified as SBP plus CT *fn1" in return for $10. Hanlon asked for, and was given, an additional 10 pink pills in exchange for another $10.

 Hanlon did not see or speak to Dr. Sugar during any of his four visits to Sugar's offices after the first one. moreover, he was not examined or questioned in any way when he sought a new medication -- a depressant, even though he had simultaneously been provided with stimulants.

 On September 23, 1983, the Government requested a warrant to search Sugar's offices. In support of that application, the Government submitted an affidavit of Agent Hanlon setting forth, inter alia, his experiences at Sugar's offices. Hanlon also alleged in that affidavit that he had received information from John P. Mulvey, a DEA Diversion Investigator *fn2" regarding Dr. Sugar's purchases of the controlled substances involved. In sum, Mulvey had informed Hanlon that Sugar purchased approximately 5,114,000 dosage units of narcotics between January 1, 1979 and March, 1983, which he had calculated were dispensed, on average, at the rate of nearly 8,000 dosage units per six-hour treatment day.

 Mulvey had further informed Hanlon, based upon discussions with members of the medical profession and review of related medical literature and a consent decree setting minimum standards for the practice of bariatrics, *fn3" of the generally approved standards (e.g., duration of usage, dosage, general treatment of patients) for dispensing narcotics in a bariatrics practices. Hanlon summarized the proper practice as follows: "The use of anorectic drugs in a program of weight control is thus only approved for short periods of time, in a program involving restricted and specific amounts of anorexiants, and regular and extensive medical examination." Hanlon further asserted in his affidavit that he had been informed by a unnamed Sugar patient, that the informant and his wife had been Sugar's patients at various times over several years, and that the wife had regularly obtained $200 worth of phendimetrazine weekly over long periods of time.

 The Government's application for a search warrant also contained a rough sketch of a floor plan, drawn by Hanlon, of the Sugar offices. The application was granted and a search pursuant to that warrant was conducted that day. Extensive evidence, including all of Dr. Sugar's books, records, data, and patient files were seized.

 On September 6, 1984, a seven count indictment was handed up charging Sugar, Reinhardt, and Vamos with one count of conspiracy to distribute the controlled narcotics, five counts of distributing phendimetrazine (one count for each calendar year 1979 through 1983), and one count of furnishing false and fraudulent material information in applications, reports, records and other documents required to be made, kept, and filed under the federal narcotics laws.

 On December 13, 1984, a superseding indictment was handed up adding Retek as a defendant in all but two counts (the substantive counts relative to calendar years 1979 and 1980) and including one additional overt act regarding Retek's participation in the conspiracy, but in no other way changing the original indictment.

 These motions ensued. The defendants seek a variety of relief in these motions. Defendant Sugar moves for the following relief: 1) dismissal of the indictment because it is insufficient as a matter of law, and because it is based upon insufficient evidence before the Grand Jury; 2) dismissal of the substantive counts (or consolidation into one count), because they are multiplicitous -- charging one offense in several counts; 3) dismissal of the indictment because it was not returned by a fair, impartial, and informed Grand Jury (a) unless the members voting to return the indictment attended all sessions related to this case and (b) owing to allegedly prejudicial remarks made by the prosecutor; 4) suppression of all evidence seized at Sugar's offices because (a) the warrant was unconstitutionally overboard and exploratory; (b) the warrant was invalid because Hanlon's Affidavit was insufficient to establish probable cause, (c) the warrant was invalid because it was based on stale information; 5) suppression of all evidence seized from areas beyond the scope of the search warrant; and 6) exclusion, under Fed. R. Evid. 403, of any evidence regarding the quantity of controlled substances involved. Defendant Reinhardt moves, in relevant part, for the following relief; 1) dismissal of the indictment because there was insufficient evidence presented to the Grand Jury; 2) dismissal of the substantive counts because they are (a) multiplicitous -- charging two or more separate offenses in one count; 3) severance of her trial from that of the other defendants, pursuant to Fed. R. Crim. P. 14; 4) a bill of particulars as to certain items, pursuant to Fed. R. Crim. P. 7(f); and 5) access to certain information regarding the constituency of the Grand Jury, including the minutes of grand jury proceedings, pursuant to Fed. R. Crim. P. 6(e)(3)(C)(i) and (ii). Defendant Reinhardt also joins in Sugar's motion to the extent it is not inconsistent. Defendant Vamos joins in Reinhardt's motion to the extent it is not inconsistent with her defense. Defendant Retek joins in the motions of Sugar and Reinhardt to the extent they are not inconsistent with his defense.

 On January 22, 1985, a second superseding indictment was handed up. This indictment, in much greater detail than the two earlier indictments, charges the defendants with the following offenses: one count of conspiracy to distribute, outside the scope of professional medical practice, the three controlled substances involved herein; five counts of distribution, outside the scope of professional medical practice of controlled substances (one each for a specific substance distributed to a named individual, noting the scope of professional medical practice, of phendimetrazine (one each for dosage units recorded as, but never actually having been distributed to six named individuals); seven counts of distribution, outside the scope of professional medical practice, of SBP Plus (one each for dosage units recorded as, but never actually having been distributed to seven named individuals); three counts of distribution, outside the scope of professional medical practice, of phentermine (one each for dosage units recorded as, but never actually having been distributed to three named individuals); and eight counts of furnishing false and fraudulent material information in applications, reports, records and other documents required to be made, kept, and filed under the federal narcotics laws (one each for the records of eight named individuals indicating, falsely, the receipt of controlled substances).

 No new motion papers were filed relative to this second superseding indictment. Since it is now the governing indictment in this case, defendant's motions will be addressed, to the extent that they are still applicable, with regard to this indictment.

 DISCUSSION

 - Motions to Dismiss -

 1. Sufficiency of the Indictment

 Defendants argue that the indictment is too vague and ambiguous to adequately apprise them of the accusations they must be prepared to meet at trial and to protect against subsequent proceedings based on the same offenses. More specifically, they claim that several facts, such as times, instances, and circumstances, must accompany the general statutory description of the offense. Whatever may have been true with regard to the first two indictments, defendants's arguments are without merit as to the second superseding indictment.

 Rule 7(c) of the Federal Rules of Criminal Procedure requires that an indictment "be a plain, concise and definite written statement of the essential facts constituting the offense charged." Compliance with Rule 7(c) ensures the satisfaction of three guarantee that in a criminal prosecution the accused shall be informed of the nature and cause of the accusation. Second, it protects the right of an accused to be free from double jeopardy, the accused has been indicted by a grand jury, as required by the Fifth Amendment, for the offenses on which he is to be tried. See, e.g., United States v. Abrams, 539 F. Supp. 378, 384 (S.D.N.Y. 1982). This third function is met by the requirement that an indictment contain some factual particularity, thus preventing the prosecution from filling in elements of its case with facts not presented to, or considered, by the grand jury. Id.; see also United States v. Agone, 302 F. Supp. 1258, 1261 (S.D.N.Y. 1969).

 In testing the sufficiency of an indictment, two criteria are to be analyzed. These are as follows:

 
first, whether the indictment "contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, '" and, secondly, 'in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' [citations omitted]"

 Russell v. United States, 369 U.S. 749, 763-64, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962) (quoting Hagner v. United States, 285 U.S. 427, 431, 76 L. Ed. 861, 52 S. Ct. 417 (1932).

 So tested, the second superseding indictment must stand. It is replete with particulars that adequately apprise the defendants of the specific charges against them. for example, count Ii charges:

 
Between on or about may 25, 1983 and on or about September 19, 1983, in the Southern District of New York, Dr. Leo Laszlo Sugar, Victoria Vamos, Gloria Reinhardt, and Nandor Retek, the defendants, unlawfully, intentionally and knowingly did distribute,outside scope of professional medical practice, a Schedule III controlled drug substance, to wit, approximately 396 dosage units of phendimetrazine, to an undercover agent of the Drug Enforcement Administration.

 There is no want of specificity in this charge. The defendants are apprised of the specific controlled substance they are alleged to have distributed, the amount allegedly distributed, the period of time during which it was allegedly distributed, and the identity of the recipient. The elements of the offense are further elucidated by the allegation that the distribution occurred "outside the scope of professional medical practice." The defendants have fair notice of the charges against them, and are adequately protected against any future charges from these transactions. Thus, the indictment is legally and factually sufficient under Rule 7(c).

 2. Sufficiency of Evidence Before Grand Jury

 Defendants also move to dismiss the indictment because the Grand Jury did not have sufficient evidence to return the indictment, or, in the alternative, for disclosure of the Grand Jury minutes in order to test the sufficiency of that evidence. *fn4" This motion must be denied.

 As the Supreme Court has stated, "[a]n indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363, 100 L. Ed. 397, 76 S. Ct. 406 (1956). Review of Grand Jury proceedings is, therefore, very limited. Absent a showing of "particularized need," this Court will not review the sufficiency or legality of the evidence before the Grand Jury. Abrams, 539 F. Supp. at 389. Likewise, the Court will not lift the veil of secrecy surrounding grand jury proceedings to permit required showing of particularized need. Id., 539 F. Supp. at 388-89; cf. United States v. Percevault, 490 F.2d 126 (2d ...


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