ESTES, District Judge:
Dr. Henry M. Collier, Jr., a physician authorized to dispense controlled substances, pleaded guilty to six counts of violating 21 U.S.C. § 841(a) (1) by distributing a controlled substance, methadone, a synthetic opiate,
Dr. Collier's primary contention is that § 841(a) (1), as applied to physicians, is unconstitutionally vague. This argument centers on the basis that Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and the regulations issued pursuant to the act
In making a medical judgment concerning the right treatment for an individual patient, physicians require a certain latitude of available options. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 747, 35 L.Ed.2d 201 (1973). Hence, "[w]hat constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances." Linder v. United States, supra, 268 U.S. at 18, 45 S.Ct. at 449.
That statutes affecting medical practice need not delineate the precise circumstances constituting the bounds of permissible practice is clearly illustrated by two recent cases in which the Supreme Court was called upon to consider whether certain abortion statutes were unconstitutionally vague in distinguishing between legal and illegal abortions. In United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971), a District of Columbia statute made abortions illegal unless "necessary for the preservation of the mother's life or health." The Court held that the term "health" included psychological as well as physical well-being and, holding that the statute presented no problem of vagueness, concluded:
402 U.S. at 72, 9 S.Ct. at 1299.
In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), a Georgia statute which provided that it was illegal for a physician to perform an abortion except "based upon his best clinical judgment that an abortion is necessary" was attacked as vague because the word "necessary" was undefined. The Court held the language not vague because "whether . . . `an abortion is necessary,' is a professional judgment that the Georgia physician will be called upon to make routinely." 93 S.Ct. at 747. Similarly here the physician must make a professional judgment as to whether a patient's condition is such that a certain drug should be prescribed.
Appellant next contends that the statute violates the Tenth Amendment by invading the state's residual police powers, in particular the power to control medical practice. The Tenth Amendment does not operate upon a valid exercise of power delegated to Congress by the Commerce Clause. Similar attacks upon § 841(a) (1) as invading the police power reserved to the states because the statute does not require a showing that the individual acts prosecuted affected interstate commerce have already been rejected by both the Fifth and Sixth Circuits. United States v. Lopez, 459 F.2d 949 (5 Cir. 1972); United States v. Scales, 464 F.2d 371 (6 Cir.
Another contention of Dr. Collier is that the Act unconstitutionally negates the presumption of innocence. Title 21 U.S.C. § 885(a) (1) provides that it shall not be necessary for the prosecution to negative any exemption in the indictment or trial and that "the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit." In considering the issue of burden of proof, one must distinguish between the burden of persuasion and the burden of going forward with the evidence. Of course, the burden of persuading the jury beyond a reasonable doubt that the defendant committed every essential element of the offense charged remains upon the prosecution throughout the trial. This precise constitutional attack on the predecessor to the present act was rejected by this Circuit in United States v. Ramzy, 446 F.2d 1184 (5 Cir. 1971). See also, United States v. Rowlette, 397 F.2d 475 (7 Cir. 1968).
Appellant next contends that the maximum punishment established by 21 U.S.C. § 841(b) (1) (A) for violation of § 841(a), 15 years of imprisonment or a $25,000 fine or both for cases involving a schedule II controlled substance, is a cruelly excessive punishment when applied to physicians prescribing methadone for the treatment of heroin addicts. It is unnecessary for us to decide this contention, since appellant was not sentenced to any confinement. Nor can appellant rely upon a Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed. 2d 758 (1962), argument that any punishment would be cruel and unusual for he was prosecuted not on the basis of his status as a physician but on the basis that he illegally distributed controlled substances other than in the course of his professional practice.
Dr. Collier's last contention is that there is a constitutionally protected right to privacy in the physician-patient relationship which is violated by the Comprehensive Drug Control Act. We find this contention meritless. Appellant has ignored the fact that the statute does not invade the legitimate doctor-patient relationship when the doctor may dispense or prescribe drugs for medical reasons, but bars only activities outside the physician's professional practice, where a physician acts, in essence, as a "pusher." There is no constitutional protection of such activity.
Therefore, the conviction of Dr. Collier is
21 U.S.C. § 841 Prohibited acts A—Penalties
21 U.S.C. § 829 Prescriptions
21 U.S.C. § 821 Rules and regulations
21 C.F.R. § 306.11 Requirement of prescription
21 C.F.R. § 306.07 Dispensing of narcotic drugs for maintenance purposes
21 C.F.R. § 306.04 Purpose of issue of prescription
21 U.S.C. § 802 Definitions