SPRECHER, Circuit Judge.
These consolidated appeals raise the same principal issue: whether indictments against physicians and a pharmacist (registrants under the Controlled Substances Act, 21 U.S.C. § 801 et seq.) for the dispensing or distributing of controlled substances pursuant to prescriptions allegedly issued without a legitimate medical purpose or outside the usual course of professional practice, properly charge crimes under 21 U.S.C. § 841(a)
In 74-1428, et al., the defendants below were: Valeriano Suarez, a physician who practiced at the Central West Medical Center located on the eighth floor of a building at 2400 West Madison, Chicago, Illinois; James McClure, a physician who assisted Dr. Suarez on a part-time basis at the medical center;
In June 1973, a grand jury returned a 33 count indictment against the defendants.
In addition to the conspiracy count, 27 of the remaining 32 counts are on appeal.
Numerous individuals, some of whom were government agents, testified that they would come to the medical clinic, receive minimal, if any, professional
Other corroborating evidence of wrongdoing by the defendants included the existence of the no refill for fifteen days rule established by Dr. Suarez. Most patients, who paid $10 per visit, were given prescriptions that would last them fifteen days. Jackie Hunter, receptionist and office manager of the clinic, testified that there were certain preferred patients who did not have to abide by the "fifteen day rule" and who could usually purchase multiple prescriptions. Ms. Hunter also testified that she overheard a conversation where Green was cautioning Dr. Suarez about prescribing too much medication for a particular individual. There was also evidence that a direct telephone line was set up from Dr. Suarez' office to the pharmacy owned by Green and Fort. Ms. Hunter testified that Green and Fort complained that Suarez was not using the telephone often enough to call prescriptions directly in, and that because of this sales were being lost to other pharmacies. Finally, Fort and Hunter had a guard placed near the pharmacy with directions to prevent individuals from entering the pharmacy unless they had a prescription and with directions to prevent the selling of medication in the lobby.
Defendants Suarez and Green challenge their convictions on the grounds that as individuals subject to registration under the Controlled Substances Act, they are not subject to conviction under 21 U.S.C. § 841(a) which was the basis for the indictment. United States v. Moore, 505 F.2d 426 (D.C.Cir. 1974), cert. granted, 43 U.S.L.W. 3445 (U.S. Feb. 18, 1975). Furthermore, all the defendants argue that the indictment in the present case is dependent on a regulation that was promulgated without authority and that impermissibly expands the range of proscribed activities beyond what the statute itself makes criminal. Finally, defendant Fort raises a sufficiency of the evidence claim.
The primary evidence against Dr. Leu was the testimony of three agents of the Drug Enforcement Administration and one agent from the Illinois Legislative Investigating Commission. These agents each described circumstances in which Dr. Leu sold them prescriptions for controlled substances. Agent Ward testified that he went to Dr. Leu for the first time on April 19, 1973 and asked to buy $100 worth of Ritalin. Dr. Leu said he could only give him a prescription for 90 pills. Five days later Ward asked for, but was refused another prescription for Ritalin because he was "too early," but after asking then instead for Seconal, he was given a prescription for a similar drug called Tuinal. Agent Ward returned thereafter and picked up other prescriptions. At no time was any physical examination given or a medical history taken.
Agent Adams testified that he told Dr. Leu that he was not kicking any habit, but just wanted to buy some Ritalin to get high. Dr. Leu then gave him a prescription for 90 pills in exchange for $20. On his next visit Adams received prescriptions for Ritalin and Seconal.
Agent Doyle went to Dr. Leu in September 1973, and explained that since July, when he had last seen Dr. Leu, he had been in Canada selling Methylphenidate (active ingredient in Ritalin). Dr. Leu wrote a prescription for Desoxyn in the name of Eddie DeGrazia (Doyle's undercover name) and although he would not write one for Ritalin to the same person, he did write one in another name, known by Dr. Leu not to be Doyle's real name. Agent Doyle told Dr. Leu that he never used Ritalin, but he just sold it to which the doctor replied: "Everybody has to make a living." Shortly thereafter Doyle asked for and received two 90 pill Ritalin prescriptions made out in the names of Ronald Henry and Thomas Sexton. A few days later Doyle purchased two more prescriptions under new names. He was at no time examined by Dr. Leu.
Agent Brown first visited Dr. Leu's office on April 19, 1973 and asked for and received a prescription in the name of Arnie Wilson for Ritalin and Seconal because he was having a party. Two weeks later he bought prescriptions in the name of Eddie Brown. Agent Brown subsequently returned and got prescriptions in the name of Bonnie Hill, Billy Brown, Lenora Brown, Lenora Wilson and Glenn Gray. Brown had told Dr. Leu that he was selling the pills.
Dr. Leu challenges his conviction on the same grounds as the defendant-doctor in 74-1428. In addition, Dr. Leu argues that his conviction should be reversed on the grounds that certain instructions to the jury were erroneous; that the evidence was insufficient to make out an attempt case where the prescriptions were never filled; that certain expert opinion evidence invaded the province of the jury; and that there was excessive pretrial publicity and that the evidence was insufficient to sustain the conviction.
The principal issue raised by the defendant-physicians in both cases is that they are not subject to conviction under 21 U.S.C. § 841(a)(1) because of their status as registrants.
Moore, supra at 430.
Prior to Moore it was unanimously held that physicians who were registrants could be liable under 21 U.S.C. § 841 if they prescribed controlled substances outside the course of professional practice. United States v. Larson, 507 F.2d 385 (9th Cir. 1974); United States v. Badia, 490 F.2d 296 (1st Cir. 1973); United States v. Jobe, 487 F.2d 268 (10th Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974); United States v. Leigh, 487 F.2d 206 (5th Cir. 1973); United States v. Bartee, 479 F.2d 484 (10th Cir. 1973); United States v. Collier, 478 F.2d 268 (5th Cir. 1973).
We agree with the Moore majority that Congress in some respects intended to treat physician-registrants differently from non-registrants. We do not agree, however, that registrants were to be totally immune from the sanctions imposed by section 841. Insofar as registrants are guilty of technical violations (e. g., use of oral prescription when written one is required; dispensation of controlled substances for which he is not authorized to another registrant; distribution of controlled substances without the proper label; failure to keep proper records; distribution pursuant to an improper order form; use of improper registration number) in their day-to-day dealings with controlled substances in accordance with their professional responsibilities, they are liable only for the lesser penalties of sections 842 and 843. When, however, a physician acts without any legitimate medical purpose and beyond the course of professional practice by selling prescriptions that allow the bearer to obtain controlled substances, his conduct should be treated like that of any street-corner pill-pusher.
Section 841 makes it "unlawful for any person . . . to distribute or dispense controlled substances. . . ." That prohibition is absolute unless otherwise "authorized by [the] subchapter." We deem it to be significant that the exception refers only to a distributing or dispensing that is authorized by the subchapter rather than a broader exception which would totally exempt all registrants.
There is another example of internal inconsistency that follows from a holding that section 841(a) does not apply to registered physicians. If a registrant distributed a controlled substance without using the proper order form or in any manner that violated 21 U.S.C. § 843 (technical violations including use of fictitious registration number; acquisition of controlled substances through misrepresentation; furnishing false information on documents required to be kept or filed and making of equipment designed to reproduce drug trade names fraudulently) he could receive up to four years imprisonment for an initial violation. A violation of the type charged in these cases, selling of prescriptions without a legitimate medical purpose, would, according to the Moore theory, be cognizable only under 21 U.S.C. § 842 (since section 841 would be unavailable and the charge is not covered by section 843). A violation of section 842 carries only a one year imprisonment term for initial violations. This would mean that a physician who knowingly wrote prescriptions to anyone on demand would receive at most a one year sentence, while his colleague who failed to use a proper order form could receive up to four years imprisonment. We do not believe that Congress intended such a result.
Furthermore, our judgment is supported by looking closely at section 842(a)(1), the section Moore would rely on for this action in lieu of section 841. Section 842(a)(1) makes it unlawful for a registrant to dispense a controlled substance in violation of 21 U.S.C. § 829. Section 829 refers to the situations when a physician is required to use either a written or oral prescription, and directs the form that the prescription is to take. It does not specifically deal with the problem of the issuance of prescriptions without any medical justification. The fact that section 842(a)(1) may have been violated by the defendant-physicians
Finally, the legislative history of the Controlled Substances Act substantiates our position. The present Act replaced the Harrison Narcotics Act of 1914, 38 Stat. 785 (1914), the prohibitions of which (against dispensing narcotics) were applied to registered physicians who acted beyond the course of their professional practice. United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922); Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 65 L.Ed. 214 (1920); United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 (1919).
We have neither been directed to nor have we discovered a substantial basis in the legislative history that convinces us that physicians were not to be liable under section 841 as they were under the Harrison Act for dispensing controlled substances outside the course of their professional practice. While it is true to some degree that the Harrison Act was thought inadequate with regard to defining precisely the liability of physicians,
The language in the legislative history relied on by the Moore court to conclude that physicians were not to be included within the coverage of section 841 is in our view too general to justify that conclusion. The congressional purpose behind section 841 was to get the drug dealer no matter who he might be, and to prevent diversion of legitimately produced controlled substances into illicit channels.
We hold that section 841 does not exclude physicians from its coverage.
It is next necessary to consider precisely what type of dispensing or distributing is authorized by the exception clause of section 841. All the defendants in both consolidated appeals argue that charges against them are based on an invalidly promulgated regulation that expands too broadly the conduct considered impermissible under section 841. The challenged regulation is 21 C.F.R. § 306.04(a) which provides that a prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice. The phrase "legitimate medical purpose" is not used in section 841(a) but is used in the indictments, and that discrepancy is the basis of the defendants' challenge.
In our view, the challenged regulation has been validly enacted and does
Although it is probably true that more precise regulations are desirable as to what physicians may or may not do with respect to the exception clause of section 841(a), the present cases are not of the border line variety which had in part motivated Congress to abandon the Harrison Act and enact the Controlled Substances Act.
The defendant Fort in 74-1435, owner of the building that housed the medical center and the Afro-American Pharmacy, challenges his conviction on sufficiency of the evidence grounds. We have reviewed the evidence and find that in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Esquer, 459 F.2d 431, 433 (7th Cir. 1972), cert. denied, 414 U.S. 1006, 94 S.Ct. 366, 38 L.Ed.2d 243 (1973), that a sufficient basis exists in the record upon which the jury could reasonably conclude that the defendant Fort had participated in a conspiracy with Dr. Suarez and Green to violate section 841(a).
While the evidence against Fort is not overwhelming, there was sufficient testimony tying him to the prescription sales operation. He was fully aware of the 15 day rule and its operation. He knew
Other evidence pointing to Fort's involvement in the conspiracy included the fact that Fort had hired security guards for the first and eighth floors. The guards were instructed to make sure that patients did not sell medication in the building. In addition, it was shown that the pharmacy had bought over 1,000,000 Ritalin tablets in an eleven month period, and that on occasion Fort ordered and picked up these supplies. From all this evidence the jury could reasonably conclude that Fort was not a passive part-owner of a pharmacy involved in illegal distribution of controlled substances, but that he knew of and was involved in a concerted effort to violate section 841(a).
The defendant Dr. Leu in addition to the challenges already considered and rejected raises a number of other claims.
The defendant contends that the jury instruction on what constituted a defense by a physician to an action under section 841(a) should have been broader than "if the substance is prescribed by him in good faith in medically treating a patient."
As the district judge correctly observed, the defendant's proffered instruction was too broad and would have taken the heart out of the government's case. The defendant's instruction would have had the effect of applying the Moore rationale. We have decided that a prescription issued by a physician that is so far removed from a physician's professional responsibilities (i. e. more than mere technical violations of his authorization) violates section 841(a). The "good faith medical treatment" instruction seems to be an accurate reflection of this holding and in no way was prejudicial to the defendant's case.
Defendant Leu was found not guilty of eleven substantive counts, but found guilty of the remaining counts all charging him with attempt to dispense. It is uncontroverted that the prescriptions written by the defendant that form the basis for Counts 12-30 were never filled. Even assuming that a prescription must be filled to complete the crime of dispensing a controlled substance as defined by section 841(a), it seems to us clear that a prescription need not be filled to make out a case of attempting to dispense against a physician.
We have previously determined that a physician's authorization which gives rise to an exemption from section 841(a) liability, does not cover the writing of prescriptions outside the course of one's professional practice. In the present case the proof shows that the defendant wrote and sold prescriptions to individuals outside the scope of his professional duties. When this occurred the defendant-physician had completed all the elements of the offense that he would ever commit and that were within his control. As far as Dr. Leu was concerned, the crime had been completed. If for some reason it was not in actuality completed, it was because of "factual" and not "legal" impossibility, and therefore not a sufficient defense to an attempt charge. United States v. Heng Awkak Roman, 356 F.Supp. 434 (S.D.N. Y.), aff'd, 484 F.2d 1271 (2d Cir. 1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974). This is not a case of "mere preparation" but rather one of attempt to commit the crime of dispensing. Here we have "the commission of an overt act, the `doing something directly moving toward, and bringing him nearer, the crime he intends to commit.'" United States v. Noreikis, 481 F.2d 1177, 1181 (7th Cir. 1973). As the court said in United States v. Mandujano, 499 F.2d 370 (5th Cir. 1974):
Id. at 376.
The foregoing test was clearly met in this case.
The defendant complains that the expert testimony of Dr. Howard D. Kurland as to customary procedures followed by licensed medical physicians in treating a new patient prior to prescribing a controlled substance as medication invaded the province of the jury.
While it may be true that an expert should not be allowed to express a conclusion upon the ultimate issue of fact to be decided by the jury, United
In addition, the trial judge gave LaBuy instruction 6.16-1 which advised the jury that an expert's opinion need not be accepted by them. We conclude, therefore, that the defendant has shown no prejudice caused by the admission of Dr. Kurland's testimony.
Dr. Leu further contends that he was denied a fair trial because of adverse pre-trial publicity. The defendant claims that news stories reporting his indictment and the trial of Dr. Suarez served to prejudice him. We note that most of the stories complained of were published or broadcast five months before defendant's trial, and accounts of Dr. Suarez' trial were published approximately six weeks before the start of Dr. Leu's trial.
Finally, we have examined defendant Leu's sufficiency of the evidence argument and we find it without merit. As the facts summarized in part II, supra, indicate, there was clearly a sufficient basis to support the jury's verdict.
We have examined all of the defendant's other contentions of error and find them unpersuasive.
For the foregoing reasons the judgments of the district court in both cases are affirmed.
Count 9 charged Dr. Suarez with dispensing a Schedule III controlled substance without a legitimate medical purpose. He was found not guilty of this count.
Counts 31-33 indicted Dr. McClure for illegally dispensing Schedule III controlled substances without a legitimate medical purpose. These counts are not before us.
H.R.Rep.No. 91-1444, 91st Cong., 2d Sess., U.S.Code Cong. & Admin.News, pp. 4566, 4580 (1970).
H.R.Rep.No. 91-1444, 91st Cong., 2d Sess., U.S.Code Cong. & Admin.News, pp. 4566, 4581 (1970).
H.R.Rep.No. 91-1444, 91st Cong., 2d Sess., U.S.Code Cong. & Admin.News, pp. 4566, 4572 (1970).