UNITED STATES of America, Plaintiff-Appellee, v. Andrew Allison DEKLE, M.D., Defendant-Appellant.
No. 97-9065.
United States Court of Appeals, Eleventh Circuit.
Jan. 21, 1999.
Miriam W. Duke, James N. Crane, John L. Lynch, Asst. U.S. Attys., Macon, GA, for Plaintiff-Appellee.
BARKETT, Circuit Judge:
Andrew Allison Dekle, M.D., appeals his conviction and sentence for one count of conspiracy to distribute controlled substances in violation of
The evidence at trial revealed that from approximately 1984 until his arrest in 1994, Dekle issued at least 129 prescriptions for controlled substances without any legitimate medical justification. The drugs concerned fell into Schedules III and IV of
We are satisfied that the evidence at trial confirmed that Dekle‘s issuance of these prescriptions fell outside the bounds of professional medical practice and thus supports his convictions for the illegal distribution of controlled substances. We are also satisfied that under the circumstances presented here the district court did not commit reversible error by denying Dekle‘s motion to suppress or by overruling his objection to the government‘s reference to his earlier indictment.
As to Dekle‘s claim regarding the admission of the photographs, reviewable under an abuse of discretion standard, we are satisfied that the error, if any, does not warrant reversal. At trial, Dekle admitted to engaging in extensive sexual encounters with patients. His defense was not that sex did not occur or that photographs were not taken, but rather that the prescriptions he wrote for the women in question were medically appropriate. Thus, the jury heard the testimony of both Dekle and various women patients regarding sexual encounters and posing for nude photographs. Although there may not be matching testimony for every act depicted in every photograph, the jury was clearly informed of the nature of the sexual bargain alleged in exchange for the prescription drugs. While it could be argued that not every photograph was admissible on impeachment or other grounds, we cannot say that there was any reasonable likelihood that the admission of the photographs affected Dekle‘s substantial rights. See United States v. Mendez, 117 F.3d 480, 486 (11th Cir.1997) (“‘[E]videntiary and other non-constitutional errors do not constitute grounds for reversal unless there is a reasonable likelihood that they affected the defendant‘s sub
We find, however, that the record does not support Dekle‘s conviction on one count of conspiracy to distribute controlled substances. In order to establish the existence of a conspiracy under
the mere agreement of one person to buy what another agrees to sell, standing alone, does not support a conspiracy conviction.... “The relationship of buyer and seller absent any prior or contemporaneous understanding beyond the mere sales agreement does not prove a conspiracy to sell, receive, barter or dispose of stolen property although both parties know of the stolen character of the goods. In such circumstances, the buyer‘s purpose is to buy; the seller‘s purpose is to sell. There is no joint objective.”
United States v. Solomon, 686 F.2d 863, 876 (11th Cir.1982) (quoting United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.1978) (emphasis in original)).2 As Judge Posner phrased the same point:
When the sale of some commodity, such as illegal drugs, is the substantive crime, the sale agreement itself cannot be the conspiracy, for it has no separate criminal object. What is needed for conspiracy in such a case is an agreement to commit some other crime—beyond the crime constituted by the agreement itself.
United States v. Lechuga, 994 F.2d 346, 349 (7th Cir.1993) (en banc).3 In the typical drug distribution scenario, involving a large-volume seller, several mid-level distributors, and multiple street-level dealers, to the extent that an agreement can be proven as to each participant, all share the common goal of maximizing the cash returns of the business through the distribution of the drugs. Cf. United States v. Hess, 691 F.2d 984, 988 (11th Cir.1982) (in conspiracy to hijack cargo trucks, “conspirators shared the common goal of increasing their personal wealth“). It is because of this obvious mutual goal, which exists separate and apart from the individual transactions necessary to effect it, that a conspiratorial agreement may, in proper circumstances, be inferred from a series of drug transactions.4
When two parties are charged with agreeing to distribute drugs, evidence that the
The same result obtains where the defendant purchases a small quantity of an illegal drug to share with another person. In United States v. Hardy, 895 F.2d 1331 (11th Cir.1990), we overturned a defendant‘s conviction for conspiracy to distribute cocaine where the evidence showed that the defendant “helped [another] purchase an eighth of an ounce of cocaine for their joint personal use.” Id. at 1334. We held that the purchase and joint use of a small quantity of the drugs was “an insufficient basis for the inference that [the defendant] intended to distribute cocaine or entered into an agreement to do so.” Id. Nor did we find that the defendant‘s “transfer [on a separate occasion] of a small amount of cocaine to a guest in his home” altered this conclusion. Id. at 1335.
Dekle‘s relationship with his female patients falls within the boundaries demarcated by these cases. Theirs was a variant of the standard buyer-seller relationship; instead of paying Dekle with money for the illegal narcotics and prescriptions he issued, the patients paid with sexual favors. The evidence shows no more than that they “purchased” the drugs from Dekle for their own personal consumption, and on one or two occasions, shared the drugs with a friend or relative. This evidence falls short of proving a joint criminal objective between any of the patients and Dekle to distribute drugs to third parties. It suffers from the same shortcomings we recognized in Brown and Hardy.
We are not persuaded by the government‘s argument that the fact that these exchanges were repeated turns a buy-sell agreement into a conspiracy. While we have held “that agreement may be inferred when the evidence shows a continuing relationship that result[ed] in the repeated transfer of illegal drugs to the purchaser,” United States v. Johnson, 889 F.2d 1032, 1035-36 (11th Cir. 1989), the cases in which we have done so involved typical drug transactions intended for resale and the generation of proceeds. If the evidence only shows a buy-sell relationship, the fact that the sales are repeated, without more, does not support an inference that the buyer and seller have the same joint criminal objective to distribute drugs.
Nor are we persuaded that the fact that one of Dekle‘s patients referred another woman to Dekle suffices to support the conviction of conspiracy. The testimony revealed that Dekle had asked Ms. Sheridan if she had “any girlfriends that he might like,” and that Sheridan thought of Dekle when her friend Ms. Bishop asked her if she “kn[e]w of anyone that she might be able to get the [money for her] car payment from.” R7:119. Sheridan then called Dekle and he told Sheridan to tell Bishop to come to his office that evening. Id. at 127. Sheridan did not tell Bishop that she was getting prescription drugs from Dekle at the time, though Bishop may have been aware of that. Id. at 128. That evening, in exchange for allowing him to take nude photographs of her, Dekle wrote Bishop a check for her car payment. Id.
Accordingly, for the foregoing reasons, Dekle‘s convictions for counts 2-129 are affirmed, and his conviction for one count of conspiracy to distribute drugs in violation of
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.