734 F.

2d 750
15 Fed. R. Evid. Serv. 1563

UNITED STATES of America, Plaintiff-Appellee,

v.
Bernardo BETANCOURT, Bernardo Sando, Norman Gerwitz,
Gene
Chekanow, Defendants- Appellants.
No. 83-5087.

United States Court of Appeals,

Eleventh Circuit.
June 18, 1984.
Rehearing and Rehearing En Banc Denied July 30, 1984.
Rehearing Denied Aug. 20, 1984.

Sophie De Mayo, Miami, Fla., for Betancourt.

Robyn Hermann, Asst. Federal Public Defender, Miami, Fla., for Sando.
Louis Vernell, North Miami Beach, Fla., James G. Roth, Miami Beach,
Fla., for Gerwitz.
Donald I. Bierman, Benedict P. Kuehne, Bierman, Sonnett, Shohat &
Sale, Miami, Fla., for Chekanow.
Stanley Marcus, U.S. Atty., and Linda Collins Hertz and William M.
Norris, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of
Florida.
Before FAY and ANDERSON, Circuit Judges, and MARKEY* , Chief
Judge of the Federal Circuit.
FAY, Circuit Judge:

Appellants Bernardo Betancourt, Gene Chekanow, Norman Gerwitz and

Bernardo Sando were charged in a seven count indictment alleging violations

of 21 U.S.C. Secs. 841(a)(1), 846 and 848.1 After a jury trial they were found
guilty on all counts. Each appellant challenges his convictions on several
grounds. We find the trial court's only error was its communication with the
jury without notice to counsel but this error was harmless. We affirm each
appellant's conviction on all counts.

I. FACTS
2

In July, 1981, appellants Chekanow and Gerwitz took over a clinic in North
Miami called Dade Obesity and Stress Clinic. In November they opened a
second clinic in the Galloway Medical Center. In early 1982, they opened a
third clinic, next door to the North Miami clinic and called it United Medical
Services. All three clinics ostensibly treated obesity and stress. Appellants
Betancourt and Sando were the doctors at the clinics.

All three clinics had the same procedure for treating patients. 2 Each patient
would initially fill out a medical history, a psychological profile and have his
blood taken. A therapist would interview the patient and check his vital signs.
Then, he would meet the doctor, pay $100 and get a prescription for 45 tablets
of methaqualone. On subsequent visits the patient would not have to fill out any
forms or have his blood checked. If a patient returned to the clinic within thirty
days, clinic personnel would send him to one of the other clinics to get another
prescription. The three clinics had a total of 6,745 patient visits and 99.64%
received prescriptions for 45 tablets of methaqualone. R.Vol. 17 at 1311.
Appellants raise six issues on appeal:

4 whether the district court erred in denying their motions to suppress due to
(1)
defective search warrants?
5(2) whether the district court erred in holding the trial in West Palm Beach?
6 whether the district court erred in refusing to exclude prejudicial medical
(3)
testimony?
7(4) whether the evidence was sufficient to sustain the convictions?
8 whether the prosecutor improperly commented on appellants' failure to testify?
(5)
and
9 whether the appellants' constitutional rights were violated due to
(6)
communications between the judge and the jury without appellants' counsel being

notified or present?
II. SEARCH WARRANTS
10

On May 18, 1982, the government searched appellants' clinics and seized
records pursuant to two search warrants issued by a magistrate. Each warrant
and supporting affidavit were identical except that one related to records in the
office of Dade Obesity and Stress Clinic and the other related to records in the
office of United Medical Services, Inc. Appellants challenge the warrants on
several grounds.3
A. Probable Cause

11

The Fourth Amendment requires that a search warrant be issued only when
there is probable cause to believe that an offense has been committed and that
evidence exists at the place for which the warrant is requested. Zurcher v.
Stanford Daily News, 436 U.S. 547, 558, 98 S.Ct. 1970, 1977, 56 L.Ed.2d 525
(1978). This circuit has stated that probable cause exists "if facts within the
magistrate's knowledge and of which he had reasonably trustworthy
information would warrant a man of reasonable caution in the belief that a
crime was committed and that evidence is at the place to be searched." United
States v. Strauss, 678 F.2d 886, 892 (11th Cir.1982). A magistrate's decision
that probable cause exists is conclusive absent arbitrariness. United States v.
Long, 674 F.2d 848, 852 (11th Cir.1982).

12

The magistrate in this case had enough information to conclude that a search
warrant should be issued. The magistrate had an affidavit from Emilio Cheves,
a compliance investigator with the Drug Enforcement Administration,
describing Cheves' interview for a job at one of the clinics. Cheves was told
that his job would be to listen to patients' hearts and write prescriptions for
methaqualone. This information was corroborated by Special Agent Mark R.
Trouville who had gone to the clinic in an undercover capacity on four
occasions. Each time he paid $100 and received a prescription for forty-five
tablets of methaqualone. On the basis of this information, the magistrate could,
without arbitrariness, find probable cause.
B. Particularity of the Description

13

The Fourth Amendment requires that warrants "particularly describe the place
to be searched, and the persons or things to be seized." This requirement of
particularity prevents "general, exploratory rummaging in a person's

belongings," Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022,
2038, 29 L.Ed.2d 564 (1971), but elaborate specificity is unnecessary. The
description is considered "sufficiently particular when it enables the searcher to
reasonably ascertain and identify the things authorized to be seized." United
States v. Cook, 657 F.2d 730, 733 (5th Cir.1981). The standard "is one of
practical accuracy rather than technical nicety." United States v. Johnson, 541
F.2d 1311, 1313 (8th Cir.1976).
14

The property in this case was described in each warrant as follows:

15 financial records, including but not limited to all documents showing source and
all
amount of income and disbursement, and patient records, limited to those records
showing the dates of patient visits, all diagnostic tests performed and results
obtained, diagnoses made, medications prescribed and the name of the diagnosing
physician, from on or about June 15, 1981 [January 1, 1982], to the present which
are evidence of violations of Title 21, United States Codes, Section 841(a)(1).
16

This description prevented a general search and was as specific as the

circumstances and nature of the activity permitted. See, United States v.
Slocum, 708 F.2d 587 (11th Cir.1983).
C. Reliability of Informant

17

Appellants also assert that the information relied on by the court to establish
probable cause did not meet the test for reliability established by the Supreme
Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
We disagree. In Illinois v. Gates, the Supreme Court abandoned the prior, rigid
"two-pronged test" of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12
L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584,
21 L.Ed.2d 637 (1969) and established instead a flexible standard. Courts
should now use a totality of the circumstances analysis to determine whether an
informant's tip establishes probable cause. Id. 103 S.Ct. at 2332. Under the new
test the issuing magistrate must only "make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him,
including the 'veracity' and 'basis of knowledge' of persons supplying [the]
hearsay information," id., there is probable cause to issue the search warrant.
Reviewing courts must only "ensure that the magistrate had a 'substantial basis
for ... conclud[ing]' that probable cause existed." Id., quoting Jones v. United
States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960).

18

All of the circumstances in this case indicate probable cause existed to issue the

warrant. The hearsay information offered by the informant was corroborated by

independent evidence. The magistrate had substantial basis for concluding that
probable cause existed.
III. VENUE
19

This case was first noticed for trial in Miami on August 2, 1982. Chekanow
filed a motion for continuance and trial was rescheduled for Miami on
September 20, 1982. Next, Gerwitz moved for a continuance and the case was
set for trial in Fort Lauderdale on October 18, 1982. Sando then moved for a
continuance and trial this time was scheduled for November 2, 1983, in West
Palm Beach. Betancourt then moved for a continuance but the district judge
denied the motion and trial was held in West Palm Beach. Appellants now
claim that holding the trial in the Northern Division of the district, rather than
in the Southern Division where the offense occurred, violated their rights under
Fed.R.Crim.P. 18. We disagree.

20

Prior to 1966 Rule 18 required trial in the division in which the offense was
committed.4 The 1966 amendment eliminated the requirement of trial within a
division and vested discretion instead in the court "to fix the place of trial at
any place within the district with due regard to the convenience of the
defendant and his witnesses." Advisory Committee Notes, Fed.R.Crim.P. 18
1966 Amendment. (emphasis added). The Fifth Circuit narrowly construed the
rule's new language in Dupoint v. United States, 388 F.2d 39 (5th Cir.1968).
The court concluded that trial was not allowed in a division other than that in
which the offense was committed unless the trial judge found that it was not
convenient to the defendant or his witnesses. Id. at 39. It was reversible error to
change venue for the convenience of the prosecution.

21

The Speedy Trial Act of 1974 added another problem to the 1966 rule. The Act
provided:

22 any case involving a defendant charged with an offense, the appropriate judicial
In
officer, at the earliest practicable time, shall, after consultation with the counsel for
the defendant and the attorney for the Government, set the case for trial on a day
certain, or list it for trial on a weekly or other short-term trial calendar at a place
within the judicial district, so as to assure a speedy trial.
23

18 U.S.C. Sec. 3161(a).

24

This provision was intended to "permit the trial of a case at any place within the
judicial district." H.R.Rep. No. 93-1508, 93d Cong., 2d Sess. 29 (1974)

U.S.Code Cong. & Admin.News 1974, p. 7401. The Act did not differentiate
between the convenience of the prosecution or the defendant. Instead the term
"judicial district" was used "in anticipation of problems which might occur in
districts with statutory divisions, where it could be difficult to set trial outside
the division." Id. The rule, therefore, was once more amended in 1979 to
reconcile the Speedy Trial Act and the rule. The amendment left the setting of
the place for trial within the discretion of the trial judge. But in exercising that
discretion the judge must consider (1) the convenience of the defendant, (2) the
convenience of the witnesses and (3) the prompt administration of justice.5
25

The trial judge did not abuse his discretion in holding this trial in West Palm
Beach. The Sixth Amendment provides a defendant with the right to a trial "by
an impartial jury of the State and district" where the crime was committed, but
there is no constitutional right to trial within a division. See United States v.
Anderson, 328 U.S. 699, 704, 705, 66 S.Ct. 1213, 1216, 1217, 90 L.Ed. 1529
(1946). A division of a federal judicial district is not a unit of venue in criminal
cases. United States v. James, 528 F.2d 999, 1021 (5th Cir.), cert. denied, 429
U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). The trial had been set twice in
Miami and once in Fort Lauderdale. Each time the trial was continued due to
motions by the defendants. Our court is painfully aware of the problems in the
Southern District of Florida. The Chief Justice had instituted a program of
visiting judges to alleviate the overload of cases pending in the Southern
District. These judges were using all of the available courtrooms in the Miami
courthouse. It was impossible to find an empty courtroom in Miami.6 The court
did not abuse its discretion in changing venue in this case.

IV. LEGITIMATE MEDICAL PURPOSE

26

Appellants were charged in the indictment with knowingly and intentionally

distributing or dispensing a controlled substance not in the usual course of
professional practice and not for legitimate medical purpose in violation of 21
U.S.C. Sec. 841(a)(1) (1980). This section provides in part that:

27
Except
as authorized by this subchapter, it shall be unlawful for any person
knowingly or intentionally ... to ... distribute or dispense, a controlled substance ..."
28

21 U.S.C. Sec. 841(a)(1).

29

The phrase "except as authorized by this subchapter" indicates that this law has
certain exceptions. One of these is a limited exemption for doctors.

30

In order to lawfully possess or dispense a controlled substance a doctor must

fulfill two requirements. He must be lawfully licensed to practice medicine and

he must be registered by the Drug Enforcement Administration. Doctors that
are registered are then authorized to possess, distribute or dispense controlled
substances. However, they may do so only in the usual course of professional
practice and for a legitimate medical purpose.7 To assist the jury in establishing
the usual course of professional practice and a legitimate medical purpose the
government called two medical doctors to the stand. Appellants now urge that
the district court erred in not excluding the doctors' testimony under Federal
Rule of Evidence 4038 since its prejudicial effect outweighed its probative
value. We disagree.
31

Rule 403 permits a trial court to exclude otherwise admissible evidence because
the "probative value" of the evidence "is substantially outweighed by the
danger of unfair prejudice." But Rule 403 is an extraordinary remedy which
should be used only sparingly since it permits the trial court to exclude
concededly probative evidence. United States v. King, 713 F.2d 627, 631 (11th
Cir.1983). In criminal trials relevant evidence is inherently prejudicial. The rule
permits exclusion only when unfair prejudice substantially outweighs probative
value. United States v. Thevis, 665 F.2d 616, 633 (5th Cir.1982) (Unit B).9

32

The jury was told that the government had to prove that "... the defendants
distributed or dispensed a controlled substance ... that they acted knowingly and
intentionally, and ... that they did so other than for a legitimate medical purpose
and in the usual course of their professional practice." R.Vol. 2 at 342. To reach
its decision the jury needed medical testimony as to what the drug is, how it is
properly used, how it can be abused and the medical profession's view of the
drug. The trial judge did not abuse his discretion, United States v. Cole, 670
F.2d 35, 36 (5th Cir.1982) (Unit B), in admitting the testimony of Dr. Wright
and Dr. Morgan to help the jury establish the standard of medical practice.

V. SUFFICIENCY OF THE EVIDENCE

33

Appellants argue that the evidence presented at trial was insufficient to support
their convictions. Challenges to the sufficiency of the evidence are measured by
the standard set out in United States v. Bell, 678 F.2d 547 (5th Cir. Unit B) (en
banc ), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638
(1983). The court in Bell stated:

34is not necessary that the evidence exclude every reasonable hypothesis of
It
innocence or be wholly inconsistent with every conclusion except that of guilt,
provided that a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt. A jury is free to choose among reasonable constructions

of the evidence.
35

Id. at 549.

36

In making this determination we must view the evidence in the light most
favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct.
457, 86 L.Ed. 680 (1942), and accept all reasonable inferences and credibility
choices by the fact-finder, United States v. Gonzalez, 719 F.2d 1516, 1521-22
(11th Cir.1983). After a careful review of the record we find the evidence
presented in this case was clearly sufficient to meet the government's burden.

VI. PROSECUTOR'S CLOSING ARGUMENT

37

During closing argument Gerwitz' counsel made the following statement to the
jury:

38 the contrary, if you remember when I was reading to Dr. Wright, and Dr. Morgan
To
all of this extensive material that was published in various periodicals, the British
Journal of Clinical Pharmacy, the Canadian Medical Journal, the journal of Clinical
Pharmacology, the immense number--not immense. Substantial number of articles
which I read to Dr. Wright, and Dr. Morgan, each one, each one of these articles
establishing, without any question, the total affect of this, of this drug methaqualone.
39

R. Vol. XIX at 1822.

The prosecutor responded:

40 just as you get the rest of the story when you have a live witness on the stand
Now,
where you can have the cross examination, you listened to the testimony of two
doctors in this case, Dr. Wright, who is the medical examiner for Broward County;
Dr. Morgan, who works with additional control with South Miami Hospital. Those
doctors took the stand, and were subject to cross examination. When it was all said
and done, they said Quaalude is not a drug which doctor should prescribe in the
ordinary course of medical practice, and should not be prescribe for any kind of a
chronic condition. Did we hear any doctor who said, hey, Quaaludes are great. Did
we hear any of the doctors who wrote these studies that Mr. Vernell is talking
about? No. We didn't hear any testimony. We have Xerox copies of a throw away
type. 10
41

Appellants assert that the prosecutor's statement was an improper comment on

appellants' failure to testify. We disagree.

42

Convictions can be overturned where a comment on a defendant's exercise of

his right to remain silent, either by the prosecutor or by counsel for a codefendant, impairs the integrity of that right. See, United States v. Aguiar, 610
F.2d 1296, 1302 (5th Cir.1980), cert. denied, 449 U.S. 827, 101 S.Ct. 91, 66
L.Ed.2d 31 (1981). However, not every statement is an impermissible comment
on silence. The standard for determining if the comment was impermissible is
"whether the statement was manifestly intended or was of such a character that
a jury would naturally and necessarily take it to be a comment on the failure of
an accused to testify." United States v. Dearden, 546 F.2d 622, 625 (5th Cir.),
cert. denied, 434 U.S. 902, 98 S.Ct. 295, 54 L.Ed.2d 188 (1977). In making this
determination the court must "look to the context in which the statement was
made ... to determine the manifest intention which prompted it and its natural
and necessary impact upon the jury." United States v. Forrest, 620 F.2d 446,
455 (5th Cir.1980), quoting Samuels v. United States, 398 F.2d 964, 967 (5th
Cir.), cert. denied, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566 (1969).

43

The statement in this case was clearly not intended, nor would a jury rationally
construe it, to be a comment on silence. The statement was an attempt by the
prosecution to show the ineffectiveness of appellants' efforts to rebut the
government's medical testimony.11 The prosecutor did not improperly comment
on the appellants' failure to testify.

VII. COMMUNICATION WITH JURY

44

During deliberations, the jury sent three notes to the trial judge asking for
supplemental information. Retired Judge William Campbell12 answered the
notes without prior notice to any counsel and outside of their presence.
Appellants assert that this procedure violated their constitutional right to be
present at every stage of the proceeding. Although we do not approve the
procedure followed by the district judge, we find the error harmless.

45

In Rogers v. United States, 422 U.S. 35, 38, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1
(1975), the Supreme Court established the rule concerning the right of a
defendant and his counsel to be present and participate in any discussion
between the judge and the jury. The Court stated that the "orderly conduct of a
trial by jury, essential to the proper protection of the right to be heard, entitles
the parties ... to be present in person or by counsel at all proceedings from the
time the jury is impaneled until it is discharged after rendering the verdict." Id.
at 38, 95 S.Ct. at 2094, quoting Fillippon v. Albion Vein Slate Co., 250 U.S.
76, 39 S.Ct. 435, 63 L.Ed. 853 (1919). However, the Rogers opinion clearly
indicated that in some circumstances the error can be harmless. Rogers v.
United States, 422 U.S. at 40, 95 S.Ct. at 2095. This is such a case.

46

The court and the jury communicated three times outside the presence of
counsel:

QUESTION: Can we find less than 4 defendants guilty of Count III?

47
COURT: Yes.
48
49
QUESTION:
We need clarification as to conspiracy, (Count III) being a separate
charge as stated in Indictment, or is "conspiracy" automatically included in Counts I
and II?
COURT: Yes.
50
51
QUESTION:
Is the jury allowed to request leniency for any defendant(s) if a guilty
verdict is found on any count? If the answer is yes, how do we go about making
such a request?
COURT: No.
52
53

R.Vol. IX at 1884-1885.

54

These were the only answers given to the jury by the judge. 13

55

We do not approve of any unjustified communication between the court and the
jury without notifying counsel and therefore do not approve the procedure
followed by the trial judge in this case. But, in this case, the error was
harmless. The jury had a complete copy of all charges in the jury room. They
could refer back to the charges and find the answers they needed. The judge's
answers to the questions were responsive and clearly stated the law. Appellants
have not shown any error or prejudice. The error is harmless. United States v.
McDuffie, 542 F.2d 236, 241 (5th Cir.1976). AFFIRMED.

Honorable Howard T. Markey, Chief Judge, U.S. Court of Appeals for the
Federal Circuit, sitting by designation

Appellants Betancourt and Sando were charged with one count of unlawfully
dispensing methaqualone and with conspiracy to unlawfully dispense
methaqualone. Chekanow and Gerwitz were charged with four counts of
unlawfully dispensing and aiding and abetting the unlawful dispensing of
methaqualone, with conspiracy to unlawfully dispense methaqualone and with
supervising a continuing criminal enterprise

Special Agent Mark Trouville of the Drug Enforcement Administration went to

the clinics as a patient in an undercover capacity on four separate occasions.
The same procedure was used all four times. This testimony was also
corroborated with the testimony of other patients

We will not address the argument made by appellants that the affidavit
contained an intentional false statement since we find it without merit

Prior to July 1, 1966, Fed.R.Crim.P. 18 provided:

Except as otherwise permitted by statute or by these rules, the prosecution shall
be had in a district in which the offense was committed, but if the district
consists of two or more divisions the trial shall be had in a division in which the
offense was committed.
The amended Rule 18, effective July 1, 1966, read as follows:
Except as otherwise permitted by statute or by these rules, the prosecution shall
be had in a district in which the offense was committed. The court shall fix the
place of trial within the district with due regard to the convenience of the
defendant and the witnesses.

Rule 18, as amended in 1979, now reads:

Except as otherwise permitted by statute or by these rules, the prosecution shall
be had in a district in which the offense was committed. The court shall fix the
place of trial within the district with due regard to the convenience of the
defendant and the witnesses and the prompt administration of justice.

This circuit had to move a scheduled Miami sitting to West Palm Beach due to
the unavailability of a courtroom in Miami

The Supreme Court in United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46
L.Ed.2d 333 (1975) interpreted Section 841 and held that a physician could
violate this Section if he exceeded the usual course of professional practice.
The jury in Moore had been instructed that the doctor could not be convicted if
he was only making "an honest effort" to prescribe for detoxification purposes
in compliance with an accepted standard of medical practice. Id. at 142 n. 20,
96 S.Ct. at 345 n. 20. See also, United States v. Blanton, 730 F.2d 1425 (11th
Cir.1984)

Federal Rule of Evidence 403 states:

Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
9

The Eleventh Circuit has adopted as binding precedent decisions of Unit B of

the former Fifth Circuit. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34
(11th Cir.1982)

10

Dr. Wright had testified that the articles used by counsel were pamphlets
mailed to his office and financed by the drug companies. He referred to them as
"throw aways." R. Vol. XIX at 1839

11

The prosecutor's comment can also be considered proper under the fair reply
doctrine. See, United States v. Hiett, 581 F.2d 1199, 1204 (5th Cir.1978)

12

Due to a prior scheduling conflict Judge Paine, the presiding trial judge, had to
attend a meeting in Miami and requested that district judge William Campbell
handle any matters in his absence. Judge Campbell is a retired district judge
from the Northern District of Illinois

13

The trial transcript indicated the judge's intention that the jury read particular
pages of the instructions in conjunction with his responses to the questions.
This information was never conveyed to the jury