Professional Documents
Culture Documents
Appellant,
v.
WILLIAM LIMBEROPOULOS,
Defendant, Appellee.
____________________
__________
_____
Pappalardo, United States Attorney, was on briefs for United States
__________
America.
____________________
June 14, 1994
____________________
____________________
*Chief Judge Stephen Breyer heard oral argument in this matter
participated in the drafting of the opinion, but did not particip
in issuance of the panel's opinion.
The remaining two paneli
therefore issue this opinion pursuant to 28 U.S.C.
46(d).
Limberopoulos,
without
proper
both
A jury convicted
pharmacists,
prescriptions,
of
Nicholas and
conspiring
approximately
to
18,000
pills,
4,000
of
which
(distributing
were
or
843(a)(2) (false
Valium.
dispensing
his
drugs);
21 U.S.C.
son, William
and
in its
U.S.C.
At sentencing, the
instead
view,
21
guideline sentencing
months
sentenced Nicholas
because,
841(a)(1)
843(a)(4)(A) (false
846 (conspiracy).
months in prison
departed
U.S.C.
ranges (GSRs)
for
21
addictive
DEA numbers);
prescriptions); 21 U.S.C.
district court
See
___
the
prison.
to 36
The court
defendants' conduct
fell
U.S.C.
843.
the court
district
erroneous
We
conception
do not accept
other issue.
and
court's
"heartland" determinations
of the
rest
upon an
unlawful-drug-prescribing statute.
on this, or
on any
remand the
though we
We agree with
case for
find the
resentencing.
We specify
that, even
for departure
legally
inadequate,
the
court remains
free
to
consider departure
if
I
Background
__________
A.
The Trial
_________
As
statute,
is
21
well
U.S.C.
known,
841,
the
forbids,
unlawful-drug-trafficking
among other
things,
the
statutes
pharmacists,
inventory
apply
to
records, dispense
prescriptions, and
canceled
830.
requiring
drugs only
keep copies
21 U.S.C.
that
they maintain
in pursuance
of all such
What we
of proper
prescriptions, duly
See 21
___
U.S.C.
827-
this case,
violating
the
government charged
the unlawful-drug-prescribing
the defendants
statute,
21
trafficking statute,
21 U.S.C.
841.
It introduced
evidence
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
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
Nicholas Limberopoulos,
who owned
Limby's
jury convicted
Pharmacy and
false prescriptions.1
worked
See
___
21
U.S.C.
843(a)(4)(A).
at Limby's
See id.
___ __
regularly, of
It
writing 39 other
false prescriptions.
See 21
___
U.S.C.
of conspiring
See 21 U.S.C.
___
843(a)(2).
of using
And it convicted
to distribute addictive
drugs to
841, 846.
B
Sentencing
__________
____________________
1One of the counts of conviction has
motion of the government.
since been
dismissed on
applicable to
unlawfully,
guideline
conspiracy to
see U.S.S.G.
___
instructs,
found
the
2D1.4
the
dispense Schedule
&
weight of
App. A-19,
the
various
II
as that
pills
involved, and
in heroin.
pills
listed
on
the
substantive counts on
convicted (as well
false
For
false
example, the
See U.S.S.G.
___
The jury
false
of 275 grams of
taken
and
had been
responsible for
DEA numbers,
the
on a small group
together, accounted
prescriptions
underlying
prescriptions, which,
dispensing
prescriptions
of related prescriptions).
(2).
an equivalent weight
13
for the
grams of Valium.
92 violations concerning
which,
taken
together,
Valium.
as
the equivalent
of between
and 9.9
amounts
should be
kilograms of
U.S.S.G.
"obstruction of
for
that these
justice."
Id.
__
3C1.1.
The result
level 38
The lower
court then
the GSRs
drug
trafficking,
but,
rather,
by the
to
the
kind
of
unlawful-drug-prescribing
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
and a
William.
on Nicholas
The government
and the
The government
downward.
It acknowledges
that the
district
to depart
court has
broad
case
a case
base
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.
Diaz-Villafane,
______________
In
intro. comment.
4(b).
departing,
the legal
reasonableness
I, Pt. A,
adequacy
of those
of the result.
reasons,
as well
as
the
F.2d at 950-52;
3742(e)(3).
court's reason
misunderstanding of the
The district
professed
belief
that
defendants'
conduct
fell
outside
"heartland" of
U.S.C.
but within
841,
the "heartland"
unlawful-drug-prescribing statute, 21
say,
the
court
thought
technically falling
reality more
statute
that
the
of the
U.S.C.
(as,
for example,
statute, 21
That
is to
conduct,
while
and guideline, in
and guideline
the
more lenient
843.
offenders'
here is its
by a different
technical tax
law
And, for
that reason,
it concluded
that
district
court
misunderstood
the
relationship
the unlawful-drug-trafficking
statute,
section 843
here.
The
seemed
to
think
that
primarily
drugs
the
on
street),
while
the
theory of departure
the
former
statute
latter
primarily
targets
pharmacists
their
selling drugs
shops.
For
unlawfully
that reason,
it
without prescriptions
felt that
in
the defendants'
Our
different
distinction
distribution
on one
other hand.
Here,
a
hand,
basically make a
distinction
between unlawful
drug
and unlawful
record-keeping on
the
moreover, the
to
21
U.S.C.
drugs
conduct
841, does
without
prescriptions, nor
suggest that
their
"distribute or
reinforced
statute
it
simply
does
it
crime
"knowingly
by well-established
applies
way.
to
case law
pharmacist's
9
intentionally"
And this
language is
making clear
(or
to
that the
physician's)
drug-
dispensing activities
so long
as
they fall
outside the
usual
966 F.2d
1066,
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,
______
v. Hayes,
_____
U.S. 866
260 (5th
Cir.),
v. Kirk,
____
584
F.2d 773, 784 (6th Cir.), cert. denied, 439 U.S. 1048 (1978); see
____________
___
also 21
____
C.F.R.
to
penalties
the
prescription
1306.04(a) (explicitly
841
section
"not issued
treatment"); cf.
___
section
of
in
21 U.S.C.
but
only
841
if
he
the usual
822(b)
"to
subjecting a pharmacist
the
knowingly
course of
fills
professional
authorized
by
their
registration").
This
standard
might
mean
violate section
that
841 if he
drug-dispensing
believes that
customer (even a
the
at
approving a
jury instruction
explaining
convicted if he knowingly
"other than in
good faith .
distributed
. . in
the usual
F.2d 207, 213 (6th Cir.) (stating that section 841(a)(1) requires
10
the
usual
course
of
very least,
that
professional
heartland.
knows that a
customer not
practice"),
cert.
_____
kind of
section 841's
distributed
"good
But if
faith" case
would
at
skirt
only lacks a
valid prescription
but
also will not use the drugs for legitimate medical purposes, then
section
a
pusher.
See
___
Moore,
_____
423
U.S. at
142-43.
Indeed, it
is
trafficker with narcotics, and any other drug dealer who does the
same.
most part at a
maintain proper
kindred
records.
accompanied with
addicts
might
forms, registration
a failure
the pharmacist's
or traffickers.
843, is aimed
prescription
Such
U.S.C.
might,
The pharmacist,
numbers,
or might
knowing sale of
use and
not,
and
come
narcotics to
for example,
simply
United States v.
_____________
might have
Sterber, 846
_______
F.2d 842
(2d Cir.
1988); or
he
to the integrity of
to address a threat
system for
Rec.
Griffin);
996-98
see
___
(1970) (statements
also
____
comparatively low
Moore, 423
_____
maximum penalty
Compare 21 U.S.C.
_______
F.
Dodd
and Sen.
The
statute's
provision suggests
the same.
U.S.
of
Sen.
See 116
___
at
135.
841(b)
search of
of section
the
843.
Close
case law
confirms the
perscrutation reveals
that the
drug-trafficking, problems
regulatory
are at issue.
See,
___
v. Cantor, Crim.
______
632 F.
charges
Supp. at 1031.
violations
trafficking
of
cases, see,
___
The fact
both
that the
sections
841
States
______
States
______
government sometimes
and
F.2d at
in
drug-
1148; United
______
843
systematically and
without proper
knowingly
prescriptions, to
sold
narcotic
drugs,
drug dealers
12
whom they knew had no legitimate medical need for the drugs.
court
The
it found
that
declined to do
they had
acted
so; it thereby
that
this
reason, one
cannot
in "good
faith," but
the
easily characterize
jury
claims
intent.
their conduct
For
as
appear to
ceiling on imprisonment.
Thus, the district court's view that the defendants' conduct fell
within
reflects a
misunderstanding of the
of section 841,
basic objectives of
the two
____________________
appellate court
Counsel for
We express no
departure
that is,
or is
instance.
On remand,
remains free to
III
Nicholas Limberopoulos's Appeal
_______________________________
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.
drug
the
trafficking
amount
of
conspiracy.
See
___
The guideline
conspiracies3 relates
"heroin-equivalent"
U.S.S.G.
applicable to
base offense
drug
involved
levels to
in
the
Table).
The
heroin
equivalents.
See,
___
id.,
___
comment.
then converted
(n.10)
(Drug
____________________
Equivalency
Table).
Recognizing
this instance,
the
that, in
is responsible,
Nicholas Limberopoulos
attributed to him
pills
for which William, not he, should have been held accountable.
rests this conclusion
thought
but
on the
in a conspiracy
that, if the
jury might
He
have
so, it would
also have thought that William's pills had nothing to do with the
conspiracy underbracing Nicholas's conviction.
The
normally
problem with
leave
to
the
this thesis
sentencing
6A1.3.
from finding
Furthermore,
the
is that
judge,
a conspiracy
to
the jury,
the
evidence
not
the guidelines
decided prevented
between Nicholas
support
finding
the
and William.
of
such
Limby's Pharmacy.
weekends.
The only
was a clerk.
in drug-dispensing
selling drugs to
years.
physical
if Nicholas
15
proper prescription.
too) might
reasonably have
each knew
each agreed
to help the
dispensing drugs
other do so
unlawfully, and
like.
Such an
(1943).
The
court,
that William
"part of
. .
the same
1B1.3(a)(2).
Nicholas
pills
By
. common
like
that
to a conspiracy.
therefore, could
William
703, 714
reasonably attribute
them to
scheme or plan."
U.S.S.G.
token, the
court
improperly
and
that
and William
could
attribute
dispensed
prior
to
be
to
to
February
10,
1987 (the
earliest
date of
prescription that
Nicholas canceled).
2.
erred
in
entire
The Weight.
__________
calculating drug
in effect,
weighing the
In doing so,
instructions
of the
Sentencing Commission,
simply followed
which
the
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.
that this
similar
language
(or the
language
of a
substantially
what
weight of an entire
of
the
active
Crowell,
_______
Young,
_____
9 F.3d
992 F.2d
Blythe,
______
944
narcotic
ingredients.
1452, 1454
207,
(9th Cir.
209 (8th
F.2d 356,
See
___
United States
______________
v.
Cir.
362 (7th
the weight
Cir.
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
Meitinger, 901 F.2d 27, 29 (4th Cir.), cert. denied, 498 U.S. 985
_________
____________
(1990);
1989),
United States v.
______________
cert. denied,
_____________
Gurgiolo,
________
Bayerle, 898
_______
498 U.S.
819
61 (3d Cir.
F.2d
28, 31
(1990);
1990).
(4th Cir.
United States
_____________
We
v.
authority.
The defendants sing one
we have quoted
words "[c]onsistent
Act."
They
with the
then assert
"entire mixture
that that
or compound" for
Anti-Drug Abuse
Act specifies
with the
weighing the
as heroin,
the
use
of
maintaining
gross,
opposed
serious punishment
as
to
for
net,
street
weights
namely,
pushers of
diluted
Ct. 1919,
1927
does not make sense, and, hence, should not apply, when
show
an inconsistency
Commission's instruction.
pills,
irrational to
weight
thereby
as a
rather than
of
conversion
the same
to
as a given
weight by
punishment
do
with
the
is
gross pill
mechanical operation
active ingredient
has
many
convinced us that it
of gross
just how
punishment equivalencies to
approximately
does
the Sentencing
applying some
(say, multiplying
reaching
way to measure
tie these
Act and
amount of heroin.
weight,
between the
The
to net
100) and
results.4
or
which
appeal
we
also makes
reject
two fresh
repeats
for
various
reasons
arguments.
of
Nicholas's
previously
First, he
stated.
points to
Bruton v. United States, 391 U.S. 123 (1968), a case in which the
______
_____________
____________________
4Other circuits have found
consequently, have rejected
Court held
of-court by
examination)
trial.
admitted
the defendant
He then claims
against him
to
new, and
for cross-
separate,
(1) portions
of Nicholas's
by
Limby's DEA
license,
which in
William's
view amounted
to
an
admission of guilt.
with regard to
nonetheless reviewed
the record
this
evidence is of
evidence that
trial).
before us to
determine whether
accomplice
pointing
subjecting
himself
the
to
finger directly
cross-examination."
at
effect of one
another,
without
United States
______________
v.
We have
546,
We conclude
that it is not.
The grand
jury testimony
19
read at
may have
___
been
in
evidence
William's handwriting,
on
statements
this
respect
requires
little
Nicholas's
to other
exculpatory
considerable
chain
of
in
subsidiary
was an obvious
Similarly,
William's guilt.
inferences (i.e.,
____
attempt at
they add
point.
but
guilt,
which
William's guilt
knowledge,
as well).
Such
through
association,
implies
name
have
implanted in
the
jurors' minds
incriminating impressions
the
against which
kinds of
Bruton
______
powerfully
protects.
See
___
to evidence
incrimination,
instructions);
cf.
__
incriminating on
which
can
DiGregorio, 605
__________
F.2d
be
its
cured
at
face, not
by
to
limiting
1190 (ruling
the
be
else about
of a fair
United States v.
_____________
(citation omitted).
Second,
should
have
3552(c).
ordered a
basis
Id.
___
mental
examination
sentencing court
under 18
says that
U.S.C.
a district
court
the defendant if
it
(emphasis supplied).
In
abuse
narcissism.
The
district judge
as
well
as
condition of
this case,
William's psychological
the
psychological examination of
for determining
aware of
complains that
"may" order a
___
"desires
William
the court
difficulties.
personality
was keenly
The
showed a history
the defendant."
records he
of drug
disorders,
such
and
as
the sentencing
add little or
about the
second.
In our
value to
what it
already knew
did not
exceed its
need
comprises a bitter
but their
conceived.
go
no
further.
Though
the
combination
appear lawful,
sentences.
We
____________________
remand
the
matter
to
the
district
court
for
resentencing
So ordered.
___________
22