UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1954
UNITED STATES,
Appellee,
v.
NICHOLAS LIMBEROPOULOS,
Defendant, Appellant.
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No. 92-1955
UNITED STATES,
Appellee,
v.
WILLIAM LIMBEROPOULOS,
Defendant, Appellant.
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No. 92-2075
UNITED STATES,
Appellant,
v.
NICHOLAS LIMBEROPOULOS,
Defendant, Appellee.
__________
No. 92-2076
UNITED STATES,
Appellant,
v.
WILLIAM LIMBEROPOULOS,
Defendant, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
___________________
____________________
Before
Breyer,* Chief Judge,
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Selya and Boudin, Circuit Judges.
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____________________
Steven J. Rappaport with whom Rappaport, Freeman & Pinta was on
____________________ ____________________________
briefs for Nicholas Limberopoulos.
Barry P. Wilson with whom Craig A. Cellitti was on briefs for
________________ __________________
William Limberopoulos.
Michael Kendall, Assistant United States Attorney, and Frank A.
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Libby, Jr., Assistant United States Attorney, with whom A. John
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Pappalardo, United States Attorney, was on briefs for United States of
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America.
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June 14, 1994
____________________
____________________
*Chief Judge Stephen Breyer heard oral argument in this matter and
participated in the drafting of the opinion, but did not participate
in issuance of the panel's opinion. The remaining two panelists
therefore issue this opinion pursuant to 28 U.S.C. 46(d).
2
SELYA, Circuit Judge. A jury convicted Nicholas and
______________
William Limberopoulos, both pharmacists, of conspiring to
dispense, without proper prescriptions, approximately 18,000
pills, about 12,000 of which were Percodan or Percocet and about
4,000 of which were Valium. See 21 U.S.C. 841(a)(1)
___
(distributing or dispensing addictive drugs); 21 U.S.C.
843(a)(2) (false DEA numbers); 21 U.S.C. 843(a)(4)(A) (false
prescriptions); 21 U.S.C. 846 (conspiracy). At sentencing, the
district court departed from the specified guideline sentencing
ranges (GSRs) 235-293 months for Nicholas and 188-235 months
for his son, William and instead sentenced Nicholas to 36
months in prison and William to 30 months in prison. The court
departed because, in its view, the defendants' conduct fell
outside the "heartland" of the unlawful-drug-trafficking statute,
21 U.S.C. 841, but within the "heartland" of an unlawful-drug-
prescribing statute, 21 U.S.C. 843. Since this latter statute,
which is regulatory in nature, limits prison terms to a 48-month
maximum, far less than the maximum under section 841, the court
felt justified in departing downward.
Both sides appeal. We agree with the government that
the district court's "heartland" determinations rest upon an
erroneous conception of the unlawful-drug-prescribing statute.
We do not accept the defendants' arguments on this, or on any
other issue. Consequently, we affirm the defendants' convictions
and remand the case for resentencing. We specify that, even
though we find the court's given ground for departure legally
3
inadequate, the court remains free to consider departure if
other, legally adequate reasons exist.
I
Background
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A.
The Trial
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As is well known, the unlawful-drug-trafficking
statute, 21 U.S.C. 841, forbids, among other things, the
distribution, dispensing, or possession with intent to distribute
of highly addictive "Schedule II" drugs. Other less well-known
statutes apply to pharmacists, requiring that they maintain
inventory records, dispense drugs only in pursuance of proper
prescriptions, and keep copies of all such prescriptions, duly
canceled to prevent unauthorized reuse. See 21 U.S.C. 827-
___
830. What we have called the unlawful-drug-prescribing statute,
21 U.S.C. 843, makes it a crime, among other things, to violate
certain of these record-keeping requirements.
In this case, the government charged the defendants
both with violating the unlawful-drug-prescribing statute, 21
U.S.C. 843, and with conspiring to violate the unlawful-drug-
trafficking statute, 21 U.S.C. 841. It introduced evidence
that, in essence, showed the following:
1. In 1988 and again in 1989, Drug Enforcement
Administration (DEA) agents found that Limby's Pharmacy
in Lowell, Massachusetts had not kept inventory records
of its addictive drugs. The agents seized a group of
Limby's canceled prescriptions (written between 1986
and 1988) and concluded that they were fraudulent.
4
2. Seven physicians testified that they had not signed
their names to particular prescriptions, as the
pharmacy's records indicated. Some of these witnesses
pointed out that the prescriptions bore signatures or
customer names that seemed not only false, but
obviously so, as, for example, the customer name "Tin
Can" on a prescription form falsely bearing the name of
a Vietnamese physician. An eighth doctor had died
before the time of the purported issuance of
prescriptions bearing his name. Five of the
"recipients" listed on the prescriptions, according to
their own testimony or that of their relatives, had not
requested, or received, the drugs purportedly
prescribed.
3. A drug addict testified that he had often bought
addictive drugs at Limby's, without prescription,
between 1986 and 1987. He added that Limby's clerk,
from whom he bought the drugs, told him not to worry
about the fact that Nicholas Limberopoulos knew that
the clerk was selling him addictive drugs.
On the basis of this, and related, evidence, the jury convicted
Nicholas Limberopoulos, who owned Limby's Pharmacy and worked
there occasionally, of writing 13 false prescriptions.1 See 21
___
U.S.C. 843(a)(4)(A). It convicted his son, William, who worked
at Limby's regularly, of writing 39 other false prescriptions.
See id. It convicted William, but acquitted Nicholas, of using
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false DEA numbers. See 21 U.S.C. 843(a)(2). And it convicted
___
both defendants of conspiring to distribute addictive drugs to
others. See 21 U.S.C. 841, 846.
___
B
Sentencing
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At sentencing, the district court first calculated the
GSRs, properly using the June 15, 1988 version of the guidelines
____________________
1One of the counts of conviction has since been dismissed on
motion of the government.
5
(to which we shall refer throughout). The court referred to the
guideline applicable to a conspiracy to dispense Schedule II
drugs unlawfully, see U.S.S.G. 2D1.4 & App. A-19, as that
___
guideline instructs, found the weight of the various pills
involved, and converted these weights into an equivalent weight
in heroin. The court did so by aggregating the weight of all the
pills listed on the false prescriptions underlying the
substantive counts on which either Nicholas or William had been
convicted (as well as a few other pills listed on a small group
of related prescriptions). See U.S.S.G. 1B1.3(a)(2) & comment.
___
(2). For example, the jury found Nicholas responsible for 13
false prescriptions, which, taken together, accounted for the
dispensing of 275 grams of Percocet and 392.7 grams of Valium.
The jury found William responsible for 92 violations concerning
false prescriptions and DEA numbers, which, taken together,
involved 2145 grams of Percocet, 1720 grams of Percodan, and 50.5
grams of Valium. The guidelines specified that these amounts
(plus the weight of the few additional related pills) should be
treated as the equivalent of between 3 and 9.9 kilograms of
heroin, yielding a base offense level of 34. The court added two
more levels for each defendant's "abuse of a position of trust,"
U.S.S.G. 3B1.3, and it added two further levels for Nicholas's
"obstruction of justice." Id. 3C1.1. The result level 38
__
for Nicholas and level 36 for William produced GSRs for these
two first-time offenders of 235-293 months for Nicholas and 188-
235 months for William.
6
The lower court then departed downward from the GSRs
because it believed that the defendants' conduct amounted, not to
unlawful drug trafficking, but, rather, to the kind of
"regulatory" offense forbidden by the unlawful-drug-prescribing
statute, with its maximum penalty of 48 months in prison. The
court wrote:
[I]t is the case here that the object of the
conspiracy charged, the charged part of the
conspiracy, is dispensing drugs pursuant to
prescriptions not issued for [a] legitimate
medical purpose. That is also the essence of
the substantive offenses charged.
Under these circumstances, the mechanical
application of [the] guidelines with respect
to count 1 [drug trafficking] significantly,
significantly, overstates the seriousness of
the predicate and substantive offenses. This
case is not a typical drug conspiracy case.
Indeed, all of the substantive offenses are
violations of a regulatory statute [21 U.S.C.
843], and Congress's intent with respect
thereto was, in this case, overridden by the
use of sections 846 [the conspiracy statute]
and 841 [the drug trafficking statute] . . .
. Accordingly, I shall depart for the reasons
I have just mentioned.
This said, the court imposed a 36-month prison term on Nicholas
and a 30-month prison term on William. The government and the
defendants now cross-appeal.
II
The Government's Appeal
_______________________
The government appeals the court's decision to depart
downward. It acknowledges that the district court has broad
power to depart from a properly calculated sentencing range in an
unusual case a case that lies outside the "heartland" of the
7
base guideline that would otherwise apply. See United States v.
___ _____________
Rivera, 994 F.2d 942, 947 (1st Cir. 1993); United States v. Diaz-
______ _____________ _____
Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862
_________ ____________
(1989); see also U.S.S.G. Ch. I, Pt. A, intro. comment. 4(b).
___ ____
But the sentencing court must give its reason(s) for departing,
see 18 U.S.C. 3553(c)(2); and the government asks this court to
___
review the legal adequacy of those reasons, as well as the
reasonableness of the result. See Rivera, 994 F.2d at 950-52;
___ ______
Diaz-Villafane, 874 F.2d at 50; see also 18 U.S.C. 3742(e)(3).
______________ ___ ____
In particular, the government urges us to find that the district
court's reason for departing reflects a misunderstanding of the
basic aim that animates the unlawful-drug-prescribing statute.
The district court's reason for departing here is its
professed belief that defendants' conduct fell outside the
"heartland" of the strict unlawful-drug-trafficking statute, 21
U.S.C. 841, but within the "heartland" of the more lenient
unlawful-drug-prescribing statute, 21 U.S.C. 843. That is to
say, the court thought that the offenders' conduct, while
technically falling within a specific statute and guideline, in
reality more closely resembled conduct forbidden by a different
statute and guideline (as, for example, a technical tax law
conviction might involve conduct more appropriately described as
"insider trading"). And, for that reason, it concluded that
departure was appropriate.
The district court misunderstood the relationship
between the two relevant statutes the unlawful-drug-trafficking
8
statute, section 841, and the unlawful-drug-prescribing statute,
section 843 and therefore, misapplied its theory of departure
here. The court seemed to think that the former statute
primarily targets non-pharmacists (those, say, who sell illegal
drugs on the street), while the latter primarily targets
pharmacists selling drugs unlawfully without prescriptions in
their shops. For that reason, it felt that the defendants'
conduct more appropriately fell within the "heartland" of section
843, not section 841. Our examination of the history and use of
the two statutes, however, indicates that they basically make a
different distinction a distinction between unlawful drug
distribution on one hand, and unlawful record-keeping on the
other hand. Here, moreover, the defendants' conduct seems to
involve the former considerably more than the latter.
We begin the process of adding flesh to this barebones
legal conclusion about the interrelationship of the two statutes
by remarking the obvious: the unlawful-drug-trafficking statute,
21 U.S.C. 841, does not exempt pharmacists who sell narcotic
drugs without prescriptions, nor does it suggest that their
conduct is somehow less seriously wrong than the conduct of non-
pharmacist drug dealers. On the contrary, the statute applies to
the two groups' conduct in the same way. The statute's language
simply makes it a crime "knowingly or intentionally" to
"distribute or dispense" narcotic drugs. And this language is
reinforced by well-established case law making clear that the
statute applies to a pharmacist's (or physician's) drug-
9
dispensing activities so long as they fall outside the usual
course of professional practice. See United States v. Moore, 423
___ _____________ _____
U.S. 122, 142 (1975); United States v. DeBoer, 966 F.2d 1066,
______________ ______
1068-69 (6th Cir. 1992); United States v. Hughes, 895 F.2d 1135,
_____________ ______
1143 (6th Cir. 1990); United States v. Vamos, 797 F.2d 1146, 1152
_____________ _____
(2d Cir. 1986), cert. denied, 479 U.S. 1036 (1987); United States
____________ _____________
v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986); United States v.
______ _____________
Lawson, 682 F.2d 480, 482 (4th Cir.), cert. denied, 459 U.S. 991
______ ____________
(1982); United States v. Hayes, 595 F.2d 258, 260 (5th Cir.),
_____________ _____
cert. denied, 444 U.S. 866 (1979); United States v. Kirk, 584
____________ _____________ ____
F.2d 773, 784 (6th Cir.), cert. denied, 439 U.S. 1048 (1978); see
____________ ___
also 21 C.F.R. 1306.04(a) (explicitly subjecting a pharmacist
____
to the penalties of section 841 if he knowingly fills a
prescription "not issued in the usual course of professional
treatment"); cf. 21 U.S.C. 822(b) (exempting pharmacists from
___
section 841 but only "to the extent authorized by their
registration").
This standard might mean that a drug-dispensing
pharmacist does not violate section 841 if he believes that a
customer (even a customer who lacks a valid prescription) needs
the drugs for legitimate medical treatment. Cf. Moore, 423 U.S.
__ _____
at 138-39 (implicitly approving a jury instruction explaining
that a physician could be convicted if he knowingly distributed
controlled drugs "other than in good faith . . . in the usual
course of a professional practice"); United States v. Seelig, 622
_____________ ______
F.2d 207, 213 (6th Cir.) (stating that section 841(a)(1) requires
10
proof beyond a reasonable doubt "that the drugs were distributed
outside the usual course of professional practice"), cert.
_____
denied, 449 U.S. 869 (1980). It is certainly arguable that, at
______
the very least, that kind of "good faith" case would skirt
section 841's heartland. But if the drug-dispensing pharmacist
knows that a customer not only lacks a valid prescription but
also will not use the drugs for legitimate medical purposes, then
section 841 applies in full flower and treats the dispenser like
a pusher. See Moore, 423 U.S. at 142-43. Indeed, it is
___ _____
difficult to find a relevant difference between a pharmacist who,
without proper prescriptions, knowingly supplies a drug addict or
trafficker with narcotics, and any other drug dealer who does the
same.
Another line of reasoning leads to the same conclusion.
The unlawful-drug-prescribing statute, 21 U.S.C. 843, is aimed
for the most part at a pharmacist's knowing failure to use and
maintain proper prescription forms, registration numbers, and
kindred records. Such a failure might, or might not, come
accompanied with the pharmacist's knowing sale of narcotics to
addicts or traffickers. The pharmacist, for example, simply
might have failed to report his drug supply properly, see, e.g.,
___ ____
United States v. Sterber, 846 F.2d 842 (2d Cir. 1988); or he
_____________ _______
might have acquired the narcotics improperly, see, e.g., United
___ ____ ______
States v. Pastor, 557 F.2d 930 (2d Cir. 1977); or, he might have
______ ______
used an expired DEA registration number in filling a prescription
for a customer whom he believed legitimately needed the drugs for
11
medicinal purposes, see, e.g., United States v. Carranza, 632 F.
___ ____ _____________ ________
Supp. 1030 (S.D.N.Y. 1986). The provision's legislative history
indicates that Congress intended it chiefly to address a threat
to the integrity of the regulatory system, i.e., the system for
__________ ____
administrative control of the legitimate drug industry. See 116
___
Cong. Rec. 996-98 (1970) (statements of Sen. Dodd and Sen.
Griffin); see also Moore, 423 U.S. at 135. The statute's
___ ____ _____
comparatively low maximum penalty provision suggests the same.
Compare 21 U.S.C. 843(c) (48-month maximum) with id. 841(b)
_______ ____ __
(life imprisonment maximum).
Our search of the case law confirms the regulatory
thrust of section 843. Close perscrutation reveals that the
government has used section 843, in separate prosecutions, where
regulatory, not drug-trafficking, problems are at issue. See,
___
e.g., Sterber, 846 F.2d at 842; United States v. Cantor, Crim.
____ _______ ______ ______ ______
No. 91-00021, 1991 WL 161017 (E.D. Pa. Aug. 14, 1991); Carranza,
________
632 F. Supp. at 1031. The fact that the government sometimes
charges violations of both sections 841 and 843 in drug-
trafficking cases, see, e.g., Vamos, 797 F.2d at 1148; United
___ ____ _____ ______
States v. Devous, 764 F.2d 1349, 1351 (10th Cir. 1985); United
______ ______ ______
States v. Goldfine, 538 F.2d 815,817 (9th Cir. 1976), does not
______ ________
show the contrary, for in such instances, if the same conduct is
involved, section 843 would be a lesser included offense.
In the case before us, the government claimed that the
defendants systematically and knowingly sold narcotic drugs,
without proper prescriptions, to drug addicts and drug dealers
12
whom they knew had no legitimate medical need for the drugs. The
court instructed the jury that it could acquit the defendants if
it found that they had acted in "good faith," but the jury
declined to do so; it thereby accepted the government's claims
that the defendants acted with knowledge and evil intent. For
this reason, one cannot easily characterize their conduct as
involving, simply or only, the kind of record-keeping violations
at which section 843 seems basically aimed, and which appear to
provide the rationale for its 48-month ceiling on imprisonment.
Thus, the district court's view that the defendants' conduct fell
within the "heartland" of section 843, but not of section 841,
reflects a misunderstanding of the basic objectives of the two
statutes and their interplay.2 That being so, we must set aside
the defendants' sentences and return the case for resentencing.
____________________
2Our determination that the defendants' conduct, as charged and
proven, fell within the "heartland" of section 841 bears a strong
analytical resemblance to our recent decision in United States v.
_____________
LeBlanc, ___ F.3d ___, (1st Cir. 1994) [No. 93-1998]. There, the
_______
district court, confronted with bookmakers who had laundered
gambling proceeds and who stood convicted of violating, inter
_____
alia, 18 U.S.C. 1956-1957 (proscribing "structuring" of
____
certain monetary transactions), departed downward to make the
sentences commensurate with the relatively modest GSR that
customarily characterized gambling offenses (rather than the
relatively steep GSR that customarily characterized money
laundering offenses). The court premised the departure on the
ground that the money laundering offenses "stem[med] from the
prior specified unlawful activity of operating an illegal
gambling business," and, therefore, fell "outside . . . the
'heartland' of the money laundering guidelines." Id. at ___
___
[slip op. at 11]. We reversed, holding that, since the
proscribed conduct "not only comes within the plain meaning of
[the anti-structuring statute], but also was within the full
contemplation of Congress when it enacted that statute," id. at
___
___ [slip op. at 15], the court's stated ground of departure
could not be upheld, id. at 16-17. So it is here.
___
13
See Rivera, 994 F.2d at 951 (explaining that an appellate court
___ ______
will review a purely legal determination without deference to the
district court).
Counsel for the defendants have argued that there are
several other special features of this case that make departure
appropriate. We express no view about whether that is, or is
not, so. Departure decisions are for the sentencing court in the
first instance. On remand, the district court remains free to
consider departure for other reasons. See id. at 956.
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III
Nicholas Limberopoulos's Appeal
_______________________________
In Nicholas Limberopoulos's appeal, he claims primarily
that the district court did not correctly calculate the GSR (from
which it then departed). We find no legal error in the
challenged calculations.
1. The Number of Pills. The guideline applicable to
____________________
drug trafficking conspiracies3 relates base offense levels to
the amount of "heroin-equivalent" drug involved in the
conspiracy. See U.S.S.G. 2D1.1 (Drug Quantity Table). The
___
amount of heroin-equivalent drug depends upon the total weight of
the Percodan, Percocet, and other pills, which is then converted
into heroin equivalents. See, id., comment. (n.10) (Drug
___ ___
____________________
3Technically, there are two statutes involved in the count of
conviction here. 21 U.S.C. 846 outlaws conspiracies to violate
drug trafficking laws, while 21 U.S.C. 841 is the particular
drug trafficking law that these defendants allegedly conspired to
violate. For ease in reference, we shall refer to the conspiracy
as a "section 841 conspiracy."
14
Equivalency Table). Recognizing that, in this instance, the
total weight of the pills depends upon the total number of pills
for which each defendant is responsible, Nicholas Limberopoulos
argues that the district court wrongly attributed to him pills
for which William, not he, should have been held accountable. He
rests this conclusion on the premise that the jury might have
thought that he was involved in a conspiracy not with William,
but with others; and that, if the jury did think so, it would
also have thought that William's pills had nothing to do with the
conspiracy underbracing Nicholas's conviction.
The problem with this thesis is that the guidelines
normally leave to the sentencing judge, not the jury, the
determination of the "conduct" that is "relevant" to sentencing.
See U.S.S.G. 6A1.3. Nothing the jury decided prevented the
___
judge from finding a conspiracy between Nicholas and William.
Furthermore, the evidence to support a finding of such a
conspiracy, whether by judge or jury, is ample.
The evidence showed, for example, that Nicholas owned
Limby's Pharmacy. He worked there on weekends and some weekdays.
William, his son, worked there most weekdays and occasionally on
weekends. The only other employee involved in drug-dispensing
was a clerk. The unlawful sales involved a large number of pills
and took place at frequent intervals over a period of two years.
The clerk told a drug-addict customer (who had obvious physical
symptoms of drug withdrawal) that it did not matter if Nicholas
knew that the clerk was selling drugs to the addict without a
15
proper prescription. From this evidence the court (and the jury,
too) might reasonably have concluded that Nicholas and William
each knew the other was dispensing drugs unlawfully, and that
each agreed to help the other do so through the ownership and
operation of the pharmacy, the maintenance of false records, and
the like. Such an implicit agreement amounts to a conspiracy.
See, e.g., Direct Sales Co. v. United States, 319 U.S. 703, 714
___ ____ ________________ _____________
(1943). The court, therefore, could reasonably attribute to
Nicholas the pills that William sold, having found them to be
"part of the same . . . common scheme or plan." U.S.S.G.
1B1.3(a)(2). By like token, the court could attribute to
Nicholas pills that William improperly dispensed prior to
February 10, 1987 (the earliest date of a prescription that
Nicholas canceled).
2. The Weight. Nicholas also argues that the court
__________
erred in calculating drug weight by, in effect, weighing the
entire pill, and, thus, counting the weight of both narcotic and
nonnarcotic ingredients (increasing the weight, say, of a single
Percocet pill from roughly five one-thousandths to five-tenths of
a gram). In doing so, however, the court simply followed the
instructions of the Sentencing Commission, which tells judges
that the
scale amounts for all controlled substances
refer to the total weight of the controlled
substance. Consistent with the provisions of
the Anti-Drug Abuse Act, if any mixture of a
compound contains any detectable amount of a
controlled substance, the entire amount of
the mixture or compound shall be considered
in measuring the quantity.
16
U.S.S.G. 2D1.1 (Drug Quantity Table, n.*).
All seven circuits that have considered the matter have
held that this language (or the language of a substantially
similar amended version of the note, see id. (Nov. 1989)), means
___ __
what it says, namely, that the sentencing court must include the
weight of an entire pharmaceutical pill and not just the weight
of the active narcotic ingredients. See United States v.
___ ______________
Crowell, 9 F.3d 1452, 1454 (9th Cir. 1993); United States v.
_______ ______________
Young, 992 F.2d 207, 209 (8th Cir. 1993); United States v.
_____ ______________
Blythe, 944 F.2d 356, 362 (7th Cir. 1991); United States v.
______ ______________
Shabazz, 933 F.2d 1029, 1032-33 (D.C. Cir.), cert. denied, 112 S.
_______ ____________
Ct. 431 (1991); United States v. Lazarchik, 924 F.2d 211, 214
_____________ _________
(11th Cir.), cert. denied, 112 S. Ct. 96 (1991); United States v.
____________ _____________
Meitinger, 901 F.2d 27, 29 (4th Cir.), cert. denied, 498 U.S. 985
_________ ____________
(1990); United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.
______________ _______
1989), cert. denied, 498 U.S. 819 (1990); United States v.
_____________ _____________
Gurgiolo, 894 F.2d 56, 61 (3d Cir. 1990). We agree with this
________
authority.
The defendants sing one esoteric tune which, they tell
us, the other courts did not fully consider. They point out that
the instruction we have quoted prefaces its statement with the
words "[c]onsistent with the provisions of the Anti-Drug Abuse
Act." They then assert that that Act specifies weighing the
"entire mixture or compound" for street drugs, such as heroin,
______
but says nothing about pharmaceutical drugs. The defendants add
______________
that the rationale the Supreme Court has identified as underlying
17
the use of gross, as opposed to net, weights namely,
maintaining serious punishment for street pushers of diluted
mixtures, see Chapman v. United States, 111 S. Ct. 1919, 1927
___ _______ ______________
(1991) does not make sense, and, hence, should not apply, when
pharmaceutical drugs are at issue.
The chief problem with this construct is that it does
not show an inconsistency between the Act and the Sentencing
Commission's instruction. The Act does not forbid use of gross
pharmaceutical drug weights as a way to measure just how many
pills, say of Percodan, warrant the same punishment as a given
amount of heroin. Nor have defendants convinced us that it is
irrational to tie these punishment equivalencies to gross pill
weight, rather than applying some mechanical operation to net
weight (say, multiplying active ingredient weight by 100) and
thereby reaching approximately the same punishment results.4
Nor, finally, is it clear to us what the use of gross weight for
purposes of conversion has to do with the existence, or
nonexistence, of street pushers of pharmaceutical drugs.
IV
William Limberopoulos's Appeal
______________________________
William's appeal repeats various of Nicholas's
arguments, which we reject for reasons previously stated.
William also makes two fresh arguments. First, he points to
Bruton v. United States, 391 U.S. 123 (1968), a case in which the
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____________________
4Other circuits have found this approach to be rational and,
consequently, have rejected similar importunings. See, e.g.,
___ ____
Crowell, 9 F.3d at 1454; Shabazz, 933 F.2d at 1036-37.
_______ _______
18
Court held that admission of incriminating statements made out-
of-court by a nontestifying codefendant (unavailable for cross-
examination) entitled the defendant to a new, and separate,
trial. He then claims that three such pieces of evidence were
admitted against him here, namely, (1) portions of Nicholas's
grand jury testimony, (2) a false exculpatory statement made by
Nicholas to his attorney, and (3) Nicholas's action in giving up
Limby's DEA license, which in William's view amounted to an
admission of guilt.
It is unclear whether William objected to this evidence
at the time of its admission (though he did move for a severance
with regard to the grand jury testimony before trial). We have
nonetheless reviewed the record before us to determine whether
this evidence is of the sort to which Bruton applies, that is,
______
evidence that has the "'powerfully incriminating' effect of one
accomplice pointing the finger directly at another, without
subjecting himself to cross-examination." United States v.
______________
DiGregorio, 605 F.2d 1184, 1190 (1st Cir.) (quoting Bruton, 391
__________ ______
U.S. at 135), cert. denied, 444 U.S. 937 (1979); see also United
____________ ___ ____ ______
States v. Nason, 9 F.3d 155, 160 (1st Cir. 1993), cert. denied,
______ _____ ____________
114 S. Ct. 1331 (1994); United States v. Barnett, 989 F.2d 546,
______________ _______
558 (1st Cir.), cert. denied, 114 S. Ct. 148 (1993). We conclude
____________
that it is not.
The grand jury testimony that the government read at
trial does not implicate William. The remaining portions of that
testimony suggest that some of the false prescriptions may have
___
19
been in William's handwriting, but they add little to other
evidence on this point. Similarly, Nicholas's exculpatory
statements to his lawyer and his surrender of Limby's license do
not directly show William's guilt. Rather, their relevance in
this respect requires a considerable chain of subsidiary
inferences (i.e., that the exculpatory statement was an obvious
____
attempt at deceit and coverup, or the surrender of the license a
kind of confession, both showing Nicholas's consciousness of his
own guilt, which knowledge, through association, implies
William's guilt as well). Such out-of-court statements neither
name nor impugn William directly, and thus cannot be supposed to
have implanted in the jurors' minds the kinds of powerfully
incriminating impressions against which Bruton protects. See
______ ___
Richardson v. Marsh, 481 U.S. 200, 208-11 (1986) (explaining that
__________ _____
Bruton applies to evidence incriminating on its face, not to
______
inferential incrimination, which can be cured by limiting
instructions); cf. DiGregorio, 605 F.2d at 1190 (ruling the
__ __________
unadorned fact that a codefendant's out-of-court admission tended
to corroborate the government's case against the defendant to be
insufficient to trigger Bruton). Again, in context, this out-of-
______
court evidence is weak, adding little, if anything, to the weight
of the remaining evidence. Nor can we find anything else about
the admission of this evidence that deprived William of a fair
trial, "resulting in a miscarriage of justice." United States v.
_____________
McLaughlin, 957 F.2d 12, 18 (1st Cir. 1992) (citation omitted).
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Consequently, the law does not require relief on this ground.
20
Second, William complains that the sentencing court
should have ordered a mental examination under 18 U.S.C.
3552(c). That provision, however, says that a district court
"may" order a psychological examination of the defendant if it
___
"desires more information than is otherwise available to it as a
basis for determining the mental condition of the defendant."
Id. (emphasis supplied). In this case, the court was keenly
___
aware of William's psychological difficulties. The records he
placed before the district judge showed a history of drug and
alcohol abuse as well as personality disorders, such as
narcissism. The judge could reasonably have concluded that the
first set of matters was not directly related to the sentencing
decision, see U.S.S.G. 5H1.4, p.s., while a mental examination
___
would add little or nothing of value to what it already knew
about the second. In our view, the court did not exceed its
discretionary authority to decide not to order the examination.5
V
V
Conclusion
Conclusion
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We need go no further. Though the combination
comprises a bitter pill, defendants' convictions appear lawful,
but their reduced sentences appear to have been inappropriately
conceived. Consequently, for the reasons we have discussed, we
affirm the convictions but vacate the defendants' sentences. We
____________________
5We note, moreover, that William does not claim financial
inability to arrange for such an examination at his own expense.
Cf. 18 U.S.C. 3006A(e)(1) (instructing courts to appoint
__
"investigative, expert, or other services" where such services
are necessary and the defendant cannot otherwise afford them).
21
remand the matter to the district court for resentencing
consistent with this opinion.
So ordered.
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22