Appeal from a judgment of the Southern District of New York, Shirley W. Kram, Judge, convicting appellant of aiding and abetting the distribution of controlled substances outside the scope of medical practice, 21 U.S.C. §§ 812 and 841, furnishing false information in documents which federal narcotics laws require to be maintained, 21 U.S.C. § 843, and of conspiracy to commit the above offenses, 21 U.S.C. § 846.
Mansfield, Oakes and Meskill, Circuit Judges.
MANSFIELD, Circuit Judge:
Defendant Victoria Vamos appeals from a judgment entered in the Southern District of New York after a jury trial before Judge Shirley W. Kram. The jury found Vamos guilty of 13 counts of aiding and abetting the distribution of controlled substances outside the scope of professional medical practice, 21 U.S.C. §§ 812 and 841, five counts of furnishing false information in records which the federal narcotics laws require to be maintained, 21 U.S.C. § 843, and one count of conspiracy to commit the foregoing offenses, 21 U.S.C. § 846. We affirm.
In the late 1970's and early 1980's Victoria Vamos was the nurse and office manager in the office of Dr. Leo Laszlo Sugar. During the period Dr. Sugar, a New York City physician in private practice, specialized in "bariatrics", or weight control. Dr. Sugar prescribed, and his staff dispensed, large quantities of controlled drugs, specifically, phendimetrazine and phentermine, stimulants which are used as diet pills. Dr. Sugar also provided controlled barbituate sleeping pills to his patients. These drugs are "Schedule III" substances, which have "currently accepted medical use[s] in treatment in the United States" but are susceptible to abuse which "may lead to moderate or low physical dependence or high psychological dependence". 21 U.S.C. § 812(b)(3). Dr. Sugar and his staff sold amounts of these drugs far in excess of medically acceptable dosages to virtually anyone who sought to make purchases.
Until 1978 Vamos, who served as Dr. Sugar's nurse and office manager and eventually became a registered nurse in 1982, dispensed the drugs to patients who returned to the office for additional pills subsequent to their first visit. As Dr. Sugar's practice grew, the task of dispensing pills was assigned to Gloria Reinhart, an assistant in the office. Reinhart testified that on the first few occasions when a patient visited Dr. Sugar's office, the approval of Dr. Sugar or Vamos was required before pills were sold. On subsequent visits, Reinhart was given carte blanche to sell as many pills as the patient desired.
In June 1981, investigators for the New York State Bureau of Controlled Substances visited the office to conduct a biennial "diversion audit", to determine whether the amount of controlled substances ordered by Dr. Sugar since 1979 matched the amount properly dispensed in the course of Dr. Sugar's practice. In conducting this audit the investigators discovered that the office maintained inadequate records concerning the dispensing of the controlled drugs. The records omitted such essential information as names of patients to whom the substances were sold, quantities of substances dispensed and the relevant dates. The investigators informed Dr. Sugar and Vamos that the records were deficient and that another audit would be conducted.
Following the departure of the investigators, Vamos directed the staff to create false records accounting for the drugs distributed between 1979 and 1981. Assuming that a proper dosage would be one vial of diet pills per week and that over the two years 104 vials could properly be dispensed to a single patient, Vamos calculated the number of patients necessary to make the quantity of drugs dispensed appear proper. Inevitably, the number of patients required for this purpose exceeded the number actually treated by Dr. Sugar. Vamos and the staff solved this problem by adding to the patients' records notations stating that pills had been dispensed to patients who had not received the controlled drugs. They also created records for friends and relatives who never in fact visited the office. The records stated that every patient, real or fictitious, visited the office every week of the two-year period and received one vial of pills each visit. To complete the records, false medical information such as weights and blood pressures were added to each card. Lastly, the group "aged" the records by pouring dirt and stepping on them. During the period of these activities and continuing into 1983 Vamos continued to distribute controlled drugs to Dr. Sugar's patients as in the past.
The case was assigned to Judge Kram on September 20, 1984 and trial was scheduled to begin on April 16, 1985. On the afternoon of April 15, the court ordered a psychiatric examination of Dr. Sugar to determine his competency. Although neither the court nor counsel noted that Vamos' behavior was in any way unusual, Vamos expressed a desire to talk with a psychiatrist to discuss "personal stresses", and the court directed that an examination of her also be conducted that evening.
The next morning, Vamos' counsel told the court that "she is totally beyond reason" and unable to assist in the preparation of her defense. Dr. Steven Simring, who had examined both defendants the previous evening, then testified to having serious doubts about Dr. Sugar's competency to stand trial. With regard to Vamos, however, the psychiatrist concluded that she "has an excellent factual and rational understanding of the charges against her, has an excellent understanding of the legal proceedings, and . . . is eminently capable of cooperating with counsel in the preparation of her defense". Simring also testified that Vamos made claims having "a delusional flavor" to the effect that police and the U.S. Attorney threatened her and her children with bodily harm and invasion of her home. He concluded that Vamos "may have some psychiatric difficulty which leads her to exaggerate anxiety and to perceive identities which are delusional" but that these problems did not affect her competency to stand trial. The court found Vamos competent to stand trial and denied counsel's application for a further psychiatric examination.
On April 16, following the colloquy concerning competency, Vamos entered a guilty plea which was accepted by the court. On June 26, represented by new counsel, Vamos moved to withdraw the plea on the grounds that it was coerced by her counsel at the time and, alternatively, that she was incompetent to plead guilty. Vamos' motion was supported by a psychiatric evaluation by Dr. Alvin Yapalater, which stated that she suffered from "paranoid psychosis with strong depressive features and suicidal tendencies". Although the psychiatrist concluded "she was not mentally competent" on the date the plea was entered, he did not draw any reasoned connection between his diagnosis and Vamos' ability to understand the nature of the proceedings or to confer with counsel. The government did not oppose the motion and Judge Kram vacated the plea without adopting either of the positions urged by Vamos.
A 16-day jury trial was held in September and October 1985. During the course of trial, the issue of competency was not raised by either counsel or the court. At trial Vamos offered two defenses. First, she contended that she was ignorant of the massive quantities of drugs that had been purveyed. To support this contention, she presented witnesses suggesting that two members of the staff, both of whom had testified for the government, actually dispensed the drugs clandestinely and pocketed the proceeds. Second, Vamos' counsel argued that Dr. Sugar served as a mentor and father-figure to her and, to the extent that she was aware of the occurrences in the office, she trusted Dr. Sugar's professional judgment that the treatments were medically proper.
Vamos was convicted on 19 of 30 counts. Vamos' counsel submitted a sentencing memorandum which included a report by Dr. Robert Goldstein, a psychiatrist who examined Vamos on November 30, 1985. Dr. Goldstein concluded Vamos suffered from "a serious psychiatric disorder, viz MAJOR DEPRESSION." Although he indicated "incarceration would be devastating and destructive for Ms. Vamos and her children", his report did not touch on the issue of competency to stand trial. The court ...