Appellant, a physician, was convicted on three counts of knowingly and intentionally distributing controlled substances in violation of 21 U.S.C. § 841(a) (1),
The principal government witness at trial was a federal agent. He testified that on three occasions he called on the appellant at the latter's office and was either directly sold controlled substances from appellant's stock or sold prescriptions for controlled substances which he then had filled at various pharmacies. The agent further testified that appellant never examined him in any way before selling him the drugs or prescriptions, and that appellant indicated that
The government acknowledges that appellant is authorized to "dispense" controlled substances and therefore could not have been convicted of violating § 841(a) (1) unless the jury found that his actions constituted something other than dispensing, namely, distributing. The real issue, then, is the meaning of "dispense," which the statute defines as "deliver[ing] a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner . . . ." 21 U.S.C. § 802(10) (1970) (emphasis added). "Practitioner" is defined as a "physician . . . registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research." 21 U.S.C. § 802(20) (1970) (emphasis added). The combined effect of these statutory definitions in the present context is to limit the meaning of "dispense" to delivery of controlled substances by a physician who is acting in the course of professional practice or research. The point is made explicitly in the regulations. See 21 C.F.R. § 306.04(a) (1973). Delivery of controlled substances outside the course of professional practice or research would constitute "distributing", see 21 U.S.C. § 802(11) (1970), an activity which violates § 841(a) (1) even if carried on by a registered physician. United States v. Collier, 478 F.2d 268, 271-272 (5th Cir. 1973).
In the instant case, the jury was properly charged that in order to convict appellant under § 841(a) (1) it had to determine whether he had delivered drugs and prescriptions to the agent and, if so, whether such deliveries were in the course of appellant's professional practice or research. The jury obviously concluded that deliveries had occurred and were not within the course of appellant's medical practice. Both conclusions
Appellant's alternative contention that he was entrapped cannot even be considered in view of the fact that he has denied committing any acts on which the conviction could have been based. It is well settled in this circuit that one cannot both deny the deed and say that he was entrapped into doing it. Sylvia v. United States, 312 F.2d 145, 147 (1st Cir.), cert. denied, 374 U.S. 809, 83 S.Ct. 1694, 10 L.Ed.2d 1032 (1963). Quite apart from this principle, there was no evidence that would warrant a finding of entrapment.