Appeal from the United States District Court for the Southern District of Indiana, New Albany Division, No. NA 85-13-CR, S. Hugh Dillin, Judge.
Before Cudahy, Easterbrook, and Ripple, Circuit Judges.
EASTERBROOK, Circuit Judge
Meese, Inc., of Madison, Indiana, hired as a consultant Marvin Leo Beasley, whose Ph.D. is in chemistry. Beasley had some 75 scientific publications to his credit, including one -- M.L. Beasley & R.L. Collins, Water-Degradable Polymers for Controlled Release of Herbicides and Other Agents, 169 Science 769 (Aug. 21, 1970) -- that claimed a substantial scientific advance in the application of herbicides. Other publications, such as W.O. Milligan, M.L. Beasley, M.H. Lloyd & R.G. Haire, Crystalline Americium Trihydroxide, 24 Acta Cristallographica 979 (1968), and K. Maer, M.L. Beasley, R.L. Collins & W.O. Milligan, The Structure of the Titanium-Iron Cyanide Complexes, 90 J. Am. Chemical Soc. 3201 (1968), demonstrated Beasley's accomplishments in his field. His new employer wanted to take precautions against the day it might lose access to Beasley's skills and paid for a $1 million life insurance policy, with itself as beneficiary.
To obtain the policy Beasley had to submit the results of a physical examination. Warren Rucker, a physician who was also the Mayor of Madison, administered the examination. Beasley took the occasion to explain to Rucker one of his theories: that administering large doses of tranquilizers and analgesics to vegetables would help them deal with stress better and absorb nutrients more quickly, increasing their rate of growth. Beasley needed only the drugs to test this thesis. Dr. Rucker decided to help Beasley conduct his experiments and wrote out many prescriptions. Most were in Beasley's name, with one each in the names F.E. Brooks and Marilyn Pierce, who Beasley said were his assistants and would need access to drugs while Beasley was out of town. The amounts of drugs prescribed, and the amounts Beasley obtained from three pharmacies between August 1980 and January 1981, are:
Drug Prescribed Dispensed
Dilaudid 4 mg 13,970. 7,470. Dilaudid 1/24 gr 37. 37. Codeine 1 gr 800. 800. Morphine 1/2 gr 1,300. 300. Morphine Sulfate 15mg/cc 240. cc 240. cc Percodan 1,100. 600. Demerol 100 mg 1,300. 300. Preludin 75 mg 1,900. 1,000. Desoxyn 15 mg 1,850. 850. Desoxyn 5 mg 34. 34. Desoxyn 2.5 mg 104. 104. Quaalude 300 mg 800. 200. Parest 400 mg 1,600. 800. Tuinal 3 gr 100. 100. Valium 10 mg 3,700. 3,000. Librium 25 mg 700. 1,000. Tenuate 75 mg 100. 100. Ionamin 30 mg 600. 530. Meprobamate 400 mg 800. 300. Seconal 1.5 gr 600. 100. Tetracycline 1,480. 1,280. Premarin 2,100. 2,100. V-Cillin 500. 300. Librax 700. 700. Penicillin 1,700. 1,700. Terramycin 250. 250. Amoxicillin 900. 100. Lasix 300. 0 . Vitamin B12 3,000. cc 1,650. cc Estrogen 300. 0. Azo Gantrisin 500. 500. Ampicillin 2,100. 1,400. Nicotinic Acid 100. 100. Procaine 8. 8. Pontocaine 60. cc 60. cc
All of the drugs in the first group are controlled substances -- either narcotics or treated in the same way as narcotics.
Beasley says the vegetables took their medicine. The U.S. Attorney believes that the drugs were sold on the black market and turned at least one person into a vegetable. An indictment charged Beasley with seven counts of obtaining Dilaudid (hydromorphone HCL), a Schedule II controlled substance, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and two counts of attempting to obtain Dilaudid by misrepresenting the name of the person to appear on the prescription, in violation of 21 U.S.C. §§ 843(a)(3) and 846. Beasley was convicted on all nine counts by a jury; the judge sentenced him to nine concurrent seven-year terms and fined him $1,000. Dr. Rucker and the three pharmacists who made all this possible were not charged; the U.S. Attorney believes they were simply credulous. But see 21 C.F.R. § 1306.02(f) (defining a prescription as an order to dispense drugs "to or for an ultimate user"), and § 1306.04(a) (no prescription is lawful unless issued "for a legitimate medical purpose by an individual practitioner acting in the usual course of his medical practice") -- both of which suggest that even if Dr. Rucker believed every word Beasley told him (and the pharmacists believed Rucker, who relayed the tale), all knew or should have known that they lacked authority to distribute these drugs to Beasley. But there may be other matters of which we are unaware, and our function is to examine the claims of those who were convicted rather than to inquire into the position of those not charged.
Beasley mounts a frivolous attack on the two § 843(a)(3) convictions, contending that the evidence is insufficient because the prosecutor did not prove that Brooks and Pierce had not authorized their names to be used. The prosecutor correctly replies that such proof is unnecessary. The government showed that Beasley lied to Dr. Rucker in the course of obtaining these prescriptions -- both about his relationship to Brooks and Pierce and about the use of the drugs. This made Beasley's procurement of the prescriptions a knowing acquisition of controlled substances by fraud, whether or not Brooks and Pierce consented. See United States v. Hill, 589 F.2d 1344 (8th Cir.), cert. denied, 442 U.S. 919 61 L. Ed. 2d 287, 99 S. Ct. 2843 (1979). The fraud was on Rucker, not on Brooks or Pierce.
There is a more substantial challenge to the government's trial strategy, however. The prosecutor was worried about the jury's reaction to Beasley's academic credentials and success as a biochemist, which lent verisimilitude to what would otherwise be a preposterous excuse for acquiring mountains of drugs. The other problem was that the principal evidence that Beasley distributed the Dilaudid he acquired in Indiana would come from F.E. Brooks, a convicted drug dealer. The word of a felon versus the word of a biochemist is not the strongest case. So the prosecutor decided to introduce extensive evidence that Beasley acquired and distributed drugs between 1981 and 1984. This presents questions under Fed. R. Evid. 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
It also presents questions under Fed. R. Evid. 403, which provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice".
The case that Beasley acquired Dilaudid with intent to distribute comes from the size and irregular manner of his purchases coupled with the testimony of F.E. Brooks that over a ten-month period starting in the summer of 1980, Beasley sold Brooks large quantities of the drug. Brooks testified that he bought between 50 and 600 tablets at a time, at a price of approximately $33 per tablet. According to Brooks, some tablets were given to his girlfriend, his son, and his daughter Marilyn Pierce; the rest were sold to strangers for between $40 and $50 per tablet. Other evidence came from Rocky Terrell, one of Beasley's ...