The opinion
MacKINNON, Circuit Judge,
dissenting:
The majority today reverses the conviction of a medical doctor, clearly prov *445 en to be a drug pusher (trafficker), on the ground that he was prosecuted under the wrong section of the Controlled Substances Act. They reach this result despite the fact that the section is aimed at drug pushers and “traffickers,” which Dr. Moore clearly was. The majority holds that the authorization of a doctor to dispense controlled substances for legitimate medical purposes absolutely immunizes him from prosecution under section 401(a) of the Act, 21 U.S.C. § 841 (a) (1970), even when he dispenses narcotic drugs clearly for illegitimate purposes. The majority thus holds that Congress intended to exempt trafficking doctors, merely because they were doctors, from the penalties applicable to other traffickers. The fatal defect in this holding is the failure to recognize that the provision of section 401(a) which excepts authorized conduct does not create a special class of persons immune from prosecution for trafficking; rather, it recognizes the legality of the acts and conduct of a physician when he dispenses a narcotic drug in good faith for a legitimate medical purpose consistent with the terms of his registration under the Act. The remainder of this opinion points out that the terms of the Act, its prior and subsequent legislative history, and plain common sense demonstrate the fallacy of the majority’s approach to this case. I therefore respectfully dissent.
I
Dr. Moore, a physician registered under the Act to dispense methadone for detoxification purposes, 1 was charged in a 639-count indictment 2 filed June 27, 1972, with the knowing and unlawful distribution and dispensation of methadone (dolophine), a Schedule II narcotic drug controlled substance, 3 in violation of section 401(a), 21 U.S.C. § 841 (a) (1970). Dr. Moore was tried by jury on a retyped indictment containing thirty-eight counts of the original indictment and was convicted on twenty-two of those counts. 4 **He was sentenced to concurrent prison terms of five to fifteen years on fourteen counts, and ten to *446 thirty years on the remaining eight counts, to run concurrently with each other but consecutively to the other sentences. He was fined a total of $150,000, a special parole term of twelve years was imposed on each count, to run concurrently as to all counts, and his license to practice medicine in the District of Columbia was revoked pursuant to D.C.Code § 2-131.
The conditions at Dr. Moore’s office are indicative of what transpired there and place his dispensing of methadone and his “treatment” of narcotic addicts in perspective. For example, the Doctor employed two armed guards at his office, one of whom carried a .38 caliber pistol which he kept beside him or in his belt, a loaded shotgun, held in both hands with the muzzle pointed upwards (Tr. at 374), and a blackjack (Tr. at 376). The other guard, stationed in the hallway, carried a .45 caliber handgun which he held at the ready in his hand (Tr. at 375). Dr. Moore had a German shepherd dog which sat beside him on the floor in his inner office (Tr. at 376), and on at least one occasion he had a .22 caliber handgun on his desk (Tr. at 129). On another occasion a patient was standing in the hallway outside the office and was told by a guard to move. When he did not respond, “fists [started] flying,” and the guard “knocked him down the steps” and out of the office (Tr. at 130-32).
It is unnecessary to recount here the testimony of all the witnesses for the Government which established beyond any doubt the illegal activity of Dr. Moore, since it was substantially cumulative. Rather, the general pattern that emerges from the evidence is detailed and then several representative case histories are discussed.
On a patient’s first visit to Dr. Moore's office a nurse would request identification, give the patient several forms to complete, take his weight, height and blood pressure, and request an unsupervised urine specimen. After standing in line for one or two hours with up to 100 other patients, he would finally see Dr. Moore. Moore would ask the patient to display track marks and then ask what he could do for him. The patient would ask for a prescription for dolophine pills. Moore would inform the patient that a prescription for 50 pills was $15, 75 pills for $25, 100 pills for $35 and 150 pills for $50. The patient generally would request and invariably receive a prescription for as many pills as he could afford.
Appointments were never required and return visits followed the same gen-, eral pattern as initial visits but without any physical examination. The established pattern on return visits was as follows:
I would go in there, the secretary would take my name; and she would put my folder out and put it in line, you know; on top of the other ones; and when it was my turn, he would call me in the office .... (Tr. II 285.)
* * * * * #
He would ask how many I wanted, and 50, 75 or a hundred, he told me the price; and I told him how much I wanted; and I paid him. (Tr. II 265.)
Each witness was able to procure a prescription for any number of dolophine pills for which he had sufficient cash on hand. Moore generally did not inquire about the daily dosages of his patients and did not give directions as to their proper use.
Bobby James King, a twenty-two year old student at Howard University (Tr. at 57), first went to Dr. Moore with a friend who had visited Moore before. The friend obtained the pills which they then shared, each paying half. He returned to Dr. Moore’s on his own (Tr. at 60) because methadone “was cheaper [than heroin] and [he] could get high” (Tr. at 88). He went to Moore not for detoxification but only to procure as much methadone as possible from the Doctor (Tr. at 90-91), since he could get higher on methadone than on heroin (Tr. at 85).
*447 The procedure King went through to join Dr. Moore’s program included producing identification to prove he was twenty-one or over and giving an unsupervised urine specimen (Tr. at 61). Blood pressure may have been taken (Tr. at 61, 94-95) and height and weight noted, and finally King saw Dr. Moore, who examined his arms for track marks (Tr. at 63, 95). He then received a half bottle of liquid methadone and a prescription for dolophine pills. On subsequent visits the Doctor typically would ask, “What can I do for you?” and King would respond “100 pills or 50, depending upon the amount of money I had.” (Tr. at 65, 113). After filling the prescription, King ingested a sufficient number of dolophines to get high and sold the rest on the street at $1.50 per pill (Tr. at 67). He began by taking two to three dolophines per day and at the end of his “detoxification” treatment his daily dosage was 30-35 dolo-phines. Id. On several occasions King visited Moore twice on one day and received his second prescription for the day without any questions asked (Tr. at 69). He finally quit methadone after Moore’s office was closed down: “I just cold turkey kicked it.” (Tr. at 78.)
Karen Bryan, a plain clothes policewoman with the Metropolitan Police Department assigned to undercover narcotics duty, visited the Doctor under an assumed name (Tr. at 133-35). She was not, of course, a narcotics user (Tr. at 136) but nonetheless was able to obtain prescriptions for dolophine pills from Moore. After the usual minimal examination she saw Moore for about three minutes, exhibited her “tracks,” placed there in a police clinic, and Moore wrote a prescription for 50 dolophines. When leaving, Officer Bryan asked the nurse, “How much for a visit?”, the nurse laughed and said, “nothing.” (Tr. at 137-38.) On subsequent visits her conversations with Dr. Moore were limited to telling him how many pills she desired (Tr. at 139). Although her urinalysis was negative as to all types of narcotics (Tr. at 146), Moore never referred to the test results (Tr. at 141).
Forris Ensor went from 5 to 70 dolo-phines per day while under Dr. Moore’s “detoxification” treatment program (Tr. at 171), but Moore never questioned him about the ever-increasing dosages (Tr. at 194). Roger Wheeler “just gave him the money and got the prescription” (Tr. at 200), always used the dolophines to get high (Tr. at 203) and bought as many as he could afford (Tr. at 200, 202). Ivan Gower was not examined for track marks (Tr. at 240); he asked Moore to detoxify him and Moore replied that he had too many patients and not enough time to attempt detoxification (Tr. at 231). William Burgee “doctored” his unsupervised urine specimen since he was not a narcotics addict (Tr. at 247), but simply purchased prescriptions for a friend (Tr. at 248). Moore never instructed his patients on the proper use of dolophine (Tr. at 254). Herbert Holland would see Moore just long enough to inform Moore of the amount of money he had available and obtain a prescription (Tr. at 286). John Mann initially was on seven dolo-phines daily, and at the end of detoxification treatment by Dr. Moore he was taking over 100 pills per day (Tr. at 310). James Frazier asked Moore how to detoxify and Moore said “you have to detox, you know, cut down, cut down,” but Moore continued to give Frazier prescriptions for any amount of dolophines desired (Tr. at 323).
As established by expert medical testimony at trial, the above evidence conclusively demonstrates that Dr. Moore’s detoxification treatment was not “consistent with any method . . . throughout the United States that is accepted by the medical profession in this country.” (Tr. at 396, 447-50). Nothing in Dr. Moore’s procedures would suggest a “new, effective, good-faith technique in the treatment, detoxificational cure of an addict.” (Tr. at 474.) Moore’s fee arrangement of increasing prices for a prescription based solely on the number *448 of dolophines prescribed was characterized by one medical expert as follows: “That is not only not acceptable medical practice; that is unethical medical practice.” (Tr. at 452, 396-97.)
In contrast to Dr. Moore’s procedures, accepted medical practice in the treatment of drug addicts dictates a complete, thorough physical examination (Tr. at 387, 447), not only to correctly diagnose their addiction but also because addicts generally are subject to other diseases that need treatment (Tr. at 447-48). The initial evaluation of a professed addict desiring treatment includes a determination as to (1) the fact of addiction, (2) the nature of the addiction, and (3) the nature of the underlying difficulties that led to addiction (Tr. at 386-87). After determining the daily dosage necessary to prevent withdrawal symptoms, detoxification begins by reducing that dosage by approximately 5-10 milligrams (the equivalent of (4 to 1 dolophines) every three days (Tr. at 441, 443). The methadone is administered daily under direct staff supervision since addicts, especially in the early stages of detoxification, cannot be trusted (Tr. at 389-90, 445). After four to six weeks an addict who proves trustworthy may be given “weekend privileges,” that is, two dosages to be taken without staff supervision (Tr. at 445).
Thus the evidence credited at trial by the jury conclusively establishes that Dr. Moore operated far beyond the pale of accepted medical practice. He clearly did not dispense methadone for detoxification purposes, but rather, quite simply, preyed upon the insatiable cravings of those unfortunate victims he purported to treat solely to get their money. In short, Moore was a drug pusher, a trafficker in illegal narcotics. 5
II
What sanction then, does the law impose on this drug pusher masquerading in the honorable profession of medicine? The majority opines that the manifest congressional intent is to prosecute drug-pushing doctors under a section reserved for “technical” violations, one that normally contemplates only civil penalties but which may result in misdemeanor penalties if the violation is done “knowingly” or more severe penalties if the offender is a repeater. This is facially absurd.
The basic criminal provisions of the Act impose sanctions for three types of illegal conduct. Section 401, 21 U.S.C. § 841 , is aimed at drug pushers and traffickers in narcotics and thus provides the most severe penalties. 6 Section 402, 21 U.S.C. § 842 , is a regulatory provision primarily aimed at “technical viola *449 tions” and accordingly normally contemplates a civil rather than criminal penalty against violators; but where such violations are committed “knowingly,” misdemeanor punishment may be imposed if prosecuted by indictment or information. 7 Repeat offenders may be subjected to greater punishment. Like *450 section 402, section 403, 21 U.S.C. § 843 , includes a number of regulatory provisions (some applicable to registrants! but provides more severe sanctions than section 402, and also prohibits the use of communication facilities in the commission of any offense. 8
Section 401(a) provides:
Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense ... a controlled substance ....
21 U.S.C. § 841 (a) (emphasis added). From a “plain language” perspective two things are immediately clear: (1) section 401(a) in terms applies to “any person” and (2) the exception does not state “except for registrants,” but rather, “except as authorized.” There is thus no expressed intent in the language of section 401(a) absolutely to immunize registrants, or any person, from prosecution under its terms.
The knowing dispensation of controlled substances by any person is made unlawful unless such act is authorized by some other provision of the Act. Thus, any person may defend against a charged violation of section 401(a) by proof that the Act elsewhere authorized his conduct. In the instant case, Moore would have a defense if he could prove that his conduct as a registrant was within the limits defined by his registration :
Persons registered ... to distribute, or dispense controlled substances are authorized to . distribute, or dispense such substances ... to the extent au *451 thorized by their registration and in conformity with the other provisions of this title.
Act, § 302(b), 21 U.S.C. § 822 (b) (emphasis added). Dr. Moore admitted at trial that his registration authorized him to dispense methadone only for detoxification purposes in the course of professional practice (Tr. at 711-12). As demonstrated above, it was proven beyond a reasonable doubt that Dr. Moore was not dispensing methadone for detoxification purposes. Rather, he was simply pushing drugs for profit with no intention, and without the effect, of treating his “patients” for any medical purpose. Thus, since section 401(a) only provides an exception “to the extent authorized by [the applicable] registration,” Dr. Moore clearly was violating section 401(a) by dispensing methadone for other than detoxification purposes.
The majority holds that section 401(a) simply does not apply to registrants. This holding is untenable because section 401(a) prohibits knowing or intentional “dispensing” and by definition of the Act registrants are practically the only persons who are capable of dispensing.
The term “dispense” means to deliver a controlled substance to an ultimate user . . . by . . .a practitioner, including the prescribing and administering of a controlled substance .... The term “dispenser” means a practitioner who so delivers a controlled substance to an ultimate user or research subject.
Act, section 102(10), 21 U.S.C. § 802 (10) (1970) (emphasis added). And a “practitioner”
means a physician [and other professional people] . . . registered . . . to . . . dispense . . . a controlled substance in the course of professional practice ....
Id. § 102(20), 21 U.S.C. § 802 (20) (emphasis added). Accordingly, in the prohibition of unauthorized “dispensing” as defined by the Act, Congress clearly indicated its intention to have section 401(a) apply to all registrants.
The entire thrust of the Act, moreover, demonstrates that registered physicians are “authorized” to dispense controlled substances only in the course of their professional practice, that is, for a legitimate medical purpose. The Act is replete with provisions that manifest a congressional intent to limit a registrant’s authorization to conduct conforming to accepted medical practices. Section 102(20), 21 U.S.C. § 802 (20) (“registered . to . dispense ... in the course of professional practice”); § 202(b)(2)(B), 21 U.S.C. § 812 (b)'(2)(B) (definition of Schedule II drug: “The drug . has a currently accepted medical use in treatment”); § 307(c)(1)(A), 21 U.S.C. § 827 (e)(1)(A) (excepting registrants from the requirement of making certain records and reports with respect to narcotics prescribed or administered “by a practitioner in the lawful course of his professional practice”); § 308(e), 21 U.S.C. § 828 (e) (“unlawful for any person to obtain . . . controlled substances for any purpose other than their use ... in the course of his professional practice”); § 404(a), 21 U.S. C. § 844(a) (“unlawful for any person knowingly or intentionally to possess . unless . . . obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice”); § 515(a)(2), 21 U.S.C. § 885 (a)(2) (“obtained pursuant to a valid prescription from a practitioner while acting in the course of his professional practice”). These provisions combine to establish an accurate context within which the “except as authorized” proviso of section 401(a) must be construed. And that context indicates an interpretation of the Act that limits a registered physician’s authorization to the dispensation of controlled substances in accordance with currently accepted medical practices. When the conduct of a registrant violates this authorized standard *452 he excludes his acts from the exception of section 401(a) and makes himself subject to its penalties. This interpretation results from a plain reading of the statute and is not based on provisions that are reasonably susceptible to “two readings” or dependent on prior decisions interpreting the Harrison Narcotic Act of 1914, 38 Stat. 785 .
The majority perceptively notices that Dr. Moore has violated section 309 of the Act, 21 U.S.C. § 829 , 9 and that the Act provides that such a violation is punishable under section 402(a)(1), 21 U.S. C. § 842(a)(1). Having demonstrated their keen sense for the obvious, the majority then conclude that since Congress covered a segment of section 401 offenses under section 402, Dr. Moore must be prosecuted under section 402 because it has less severe penalties. Majority Op. at 427. The majority fail to recognize that a registered physician cannot violate section 401(a) without also necessarily violating sectipn 402(a)(1). 10 Their reasoning, then, leads to the pat *453 ently absurd conclusion that one who commits a lesser included offense cannot be prosecuted for the greater offense because the lesser included offense provides for less severe penalties. In fact that is the basic reasoning of their opinion.
That ambiguity which the majority professes to find so obvious, however, does not exist in fact. Section 401(a) clearly applies to registered physicians when their conduct is outside the scope of their authorization, while section 402(a)(1) is clearly limited in its application to those “[m]ore or less technical violations” outlined in section 309. H. R.Rep.No.91-1444, 91st Cong., 2d Sess. 10 (1970), U.S.Code Cong. & Admin. News 1970, p. 4566. Section 309 demonstrably is purely a regulatory provision designed to insure compliance with certain procedural, in contradistinction to substantive, requirements of the Act. Thus the section designates the form of prescriptions issued for various scheduled controlled substances; the more dangerous the drug the more formal the prescription required. Schedule I drugs are excluded from section 309 since by definition they have “[no] currently accepted medical use in treatment” and may not be prescribed. Act § 202(b) (1) (B), 21 U.S.C. § 812 (b)(1)(B). Schedule II drugs, which have “a currently accepted medical use” but may result in “severe psychological or physical dependence,” id., § 202(b)(2), 21 U.S.C. § 812 (b)(2), may be dispensed only by a “written prescription,” and such prescription may not be refilled. Id. § 309(a), 21 U.S.C. § 829 (a) (emphasis added). Schedule III and IV drugs, which are relatively less dangerous, id. § 202(b)(3), (4), 21 U.S.C. § 812 (b)(3), (4) , “may be dispensed without a written or oral prescription in conformity with” the Federal Food, Drug, and Cosmetic Act, and such prescriptions may be refilled. Id. § 309(b), 21 U.S.C. § 829 (b) (emphasis added). Schedule V drugs, relatively the least dangerous, id. § 202(b)(5), 21 U.S.C. § 812 (b) (5) , are subject only to the requirement of dispensation for a medical purpose. Id. § 309(c), 21 U.S.C. § 829 (c).
Consistent with this interpretation, the House referred to violations of section 309 punishable under section 402 as “[m]ore or less technical violations.” H.R.Rep.No.91-1444, 91st Cong., 2d Sess. 10 (1970), U.S.Code Cong. & Admin.News 1970, p. 4566. Section 402, moreover, normally contemplates only a civil proceeding to remedy violations of the procedural requirements of section 309. If committed “knowingly,” however, the violation may be prosecuted as a misdemeanor, Act § 402(c)(2)(A), 21 U.S.C. § 842 (c)(2)(A); id. § 102(13), 21 U.S.C. § 802 (13); 18 U.S.C. § 1 (1970), and repeat offenders may receive up to two years. In contrast to sanctions available under section 402 for procedural irregularities, section 401(a) applies to substantive conduct which exceeds the scope of that authorized by one’s registration and provides for felony prosecution.
To further demonstrate the error of the majority’s approach, assume the following hypothetical situation. Suppose the existence of all the facts proven in this case with the exception that Dr. Moore personally sold and delivered the dolophine pills to the individuals named in the indictment rather than writing prescriptions to be filled at a pharmacy. Since section 309 permits a physician to dispense drugs directly to the ultimate user without a written prescription, Dr. Moore would not have violated section 309 and thus could not be prosecuted under section 402(a)(1). I assume the majority would nevertheless adhere to the position that Dr. Moore “acted wrongfully.” Majority Op. at 429. Assuming all the predicates of the majority opinion as given, then, Moore could not be prosecuted in this situation under either section 401 or 402. Section 402(a)(1) would not be triggered by a violation of section 309, and under the majority’s theory the difference between personal and prescriptive delivery of controlled substances would be meaning *454 less because registrants are not subject to section 401(a).
The majority’s holding that Dr. Moore can only be prosecuted for a misdemean- or under section 402 rather than for a felony under section 401(a) produces a result not easily susceptible to rational explanation. It is beyond question, I assume, that Congress intended the revocation of registration of any physician who engaged in such palpably unlawful drug pushing as that engaged in by Dr. Moore. Revocation, however, is limited to those situations where a registrant:
(1) has materially falsified any application filed pursuant to or required by this title or title III;
(2) has, been convicted of a felony under this title or title III or any other law of the United States, or of any State, relating to any substance defined in this title as a controlled substance ; or
(3) has had his State license or registration suspended, revoked, or denied by competent State authority and is no longer authorized by State law to engage in the manufacturing, distribution, or dispensing of controlled substances.
Act, § 304(a), 21 U.S.C. § 824 (a). There is no evidence that condition (1) has been satisfied. Revocation of Dr. Moore’s registration may not be premised on condition (2) since the majority holds that he may only be prosecuted under the misdemeanor provisions of section 402, rather than under the felony provisions of section 401(a). Nor would it appear that revocation can be premised on condition (3), since D.C.Code § 2-131 similarly requires conviction of a felony before a physician’s license or registration to practice medicine may be revoked. Thus section 304, premising revocation of registration upon a felony conviction, presuasively suggests that the Congress intended the felony provisions of section 401(a) to be applicable to registrants, such as Dr. Moore, who exceed the scope of conduct authorized by their registration. Otherwise, doctors who trafficked in drugs could never have their registrations revoked. 11
Moreover, the majority’s decision that no registered physician can be prosecuted under section 401 of the Act is in direct conflict with recent decisions in the First, Fifth, Ninth and Tenth Circuits. In United States v. Bartee, 479 F.2d 484, 488 (10th Cir. 1973) (emphasis in original), the court specifically held that
when a medical practitioner issues a prescription which is not for a legitimate medical purpose and is not in the usual course of his professional practice,
he is subject to prosecution under section 401. The court also considered that the cases under the now repealed Harrison Narcotics Act were analogous, as the Government has argued in this case. The Tenth Circuit reaffirmed Bartee in United States v. Jobe, 487 F.2d 268 (10th Cir. 1973). The Fifth Circuit has aligned itself with the Tenth, indicating that a registered physician may be prosecuted under section 401
for the unlawful dispensing of a controlled substance, if his prescription is not for a legitimate medical purpose in the usual course of his professional practice ....
United States v. Leigh, 487 F.2d 206, 207 (5th Cir. 1973). United States v. Badia, 490 F.2d 296 (1st Cir. 1973) and United States v. Larson, 507 F.2d 385 (9th Cir. 1974) are to the same effect. Thus four circuits have held that a registered physician may be prosecuted under section 401 when he issues prescriptions for controlled substances in an unauthorized manner. I agree.
*455 hi
The legislative history of the Controlled Substances Act is fairly straightforward and supports the foregoing interpretation. The Act fundamentally revised the penalty structure of the Harrison Narcotic Act of 1914, 38 Stat. 785 , by implementing more rational and sophisticated sanctions based upon the nature of particular violations. Under the Harrison Act a violation of any of the Act’s provisions uniformly was punishable by a fine of not more than $2,000 or imprisonment for not more than five years, or both. By contrast, the present Act, passed in 1970, was
designed to deal in a comprehensive fashion with the growing menace of drug abuse ... by providing for an overall balanced scheme of criminal penalties for offenses involving drugs.
* -x- * * *
The bill revises the entire structure of criminal penalties involving controlled drugs by providing a consistent method of treatment of all persons accused of violations.
H.R.Rep.No.91-1444, 91st Cong., 2d Sess. 1, 4 (1970), U.S.Code Cong. & Admin.News 1970, pp. 4567, 4570. In short, the comprehensive revision was designed to make the penalty fit the crime.
The House Report indicates that registered physicians were intended to be subject to felony prosecution under section 401(a). On this point, the majority misrepresents the basic thrust of the House Report insofar as it relates to the Prettyman Commission Report by only quoting the Commission’s discussion without noting or analyzing the conclusions drawn from that discussion by the House and by ignoring the specific legislative solution enacted by Congress. The Prettyman Commission focused on the difficulties faced by physicians in determining the conditions under which they lawfully could dispense narcotics in the treatment of addicts. As a result of such difficulties, “[i]n most instances they shun addicts as patients.” The house reacted to this problem not by absolutely immunizing registered physicians from felony prosecution for trafficking in narcotics, as the majority holds, but by joining with the Senate in enacting section 4 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 42 U.S.C. § 257a (1970) (emphasis added):
The Secretary of Health, Education, and Welfare, after consultation with the Attorney General and with national organizations representative of persons with knowledge and experience in the treatment of narcotic addicts, shall determine the appropriate methods of professional practice in the medical treatment of the narcotic addiction of various classes of narcotic addicts, and shall report thereon from time to time to the Congress.
With respect to this legislation the House Report stated:
Section 4 of the reported bill provides that the Secretary of Health, Education, and Welfare, after consultation with national organizations, shall determine appropriate methods of professional practice in the medical treatment of the narcotic addiction of various classes of narcotic addicts, and report thereon from time to time to the Congress. The purpose of this provision is to clarify for the medical profession in the United States the extent to which they may safely go in treating narcotic addicts as patients.
H.R.Rep.No.91-1444, 91st Cong., 2d Sess. 14 (1970), U.S.Code Cong. & Admin.News 1970, p. 4580. Immediately following this paragraph the House Report quotes that portion of the Pretty-man Commission Report cited by the majority and discussed above, and then continues:
The committee expects that the determinations made by the Secretary of *456 Health, Education, and Welfare will clarify for the medical profession the conditions under which narcotic drugs may be prescribed for the medical treatment of narcotic addicts. Although the committee is concerned about the appropriateness of having Federal officials determine the appropriate method of the practice of medicine, it is necessary to recognize that for the last 50 years this is precisely what has happened, through criminal prosecution of physicians whose methods of prescribing narcotic drugs have not conformed to the opinions of Federal prosecutors of what constitutes appropriate methods of professional practice. In view of this situation, this section will provide guidelines, determined by the principal health agency of the Federal Government, after consultation with appropriate national professional organizations. Those physicians who comply with the recommendations made by the Secretary will no longer jeopardize their professional careers by accepting narcotic addicts as patients.
Id. at 15, U.S.Code Cong. & Admin.News 1970, p. 4581 (emphasis added). See also H.R.Rep.No. 91-1603, 91st Cong., 2d Sess. 5 (Conference Report) (1970), U. S.Code Cong. & Admin.News 1970, p. 4657. Thus the Congress provided a completely different legislative and administrative solution to the problem than the majority indicates. And it is one in which the manifest intent of the Act is that physicians who comply with the terms of their registration and other applicable regulations are “authorized” under section 401(a). When they act outside the clearly defined bounds of their registration, they act in an unauthorized manner and are subject to prosecution under section 401(a).
Sharply distinguished in the legislative history from the unauthorized drug pushing engaged in by Dr. Moore and punishable under section 401(a), are violations of the regulatory provisions of section 402. A registered physician may be punished under section 402(a)(1) if he violates section 309. Section 309 simply regulates the type and nature of prescriptions required to be issued when dispensing controlled substances. As discussed previously, 12 section 309 imposes purely formal requirements — written, oral or no prescription — which vary according to the dangerousness of the drug dispensed. Thus, as the House Report states, these “ [m] ore or less technical violations . . . are punishable by less severe penalties.” Id. at 10, U. S.Code Cong. & Admin.News 1970, p. 4576. Indeed, section 402 provides that a violation of its provisions does not constitute a crime, except when committed knowingly, and then a maximum punishment of one year, or two years for repeat offenders, may be imposed. To impose such minor punishment on drug pushers would be completely inconsistent with the maximum punishments authorized by the Act for other violations. For example, under section 403(a), 21 U.S.C. § 843 (a), registrants who distribute controlled substances without using the proper order form can be sentenced to imprisonment for up to four years for an initial violation and up to eight years for a second offense. 13 Nonetheless, the majority here holds that drug pushing registrants can only be prosecuted under section U02, the principal thrust of which is to impose civil penalties, and misdemeanor punishment not to exceed one year imprisonment for the initial offense or two years for subsequent offenses. Certainly Congress never intended such gross inequality of penalties which would punish lesser offenses more severely than greater offenses.
Further evidence that the Congress intended section 401(a) to apply to reg *457 istered physicians is contained in the Narcotic Addict Treatment Act of 1974 (NATA), Pub.L. No. 93-281 (May 14, 1974), 88 Stat. 124 , and its legislative history. NATA amended the Controlled Substances Act to provide greater controls against the illegal diversion of narcotics by unscrupulous physicians, recognizing that
most methadone diverted for illegal use and sale is derived from one of four major sources: (1) unscrupulous activities of certain individual practitioners ....
H.R.Rep.No.93-884, 93d Cong., 2d Sess. 3 (1974), U.S.Code Cong. & Admin. News 1974, p. 3031; S.Rep.No.93-192, 93d Cong., 1st Sess. 6 (1973). NATA implemented this objective by requiring a separate, special registration for practitioners engaged in detoxification and maintenance programs and by providing for summary revocation of such registration for failure to comply with specific standards. This special registration was designed to enable the Attorney General immediately to halt illegitimate and dangerous narcotic detoxification and maintenance programs where successful felony prosecution of registered physicians under section 401(a) would be either too difficult or too slow and time-consuming. Id. at 3, 11-15 , U.S.Code Cong. & Admin.News 1974, p. 3035.
Moreover, the Congress continues specifically to contemplate prosecution under section 401(a) of registered physicians who engage in such illegal activities as Dr. Moore. Indeed, the Senate Report on NATA used the case of Dr. Moore as the most egregious example of an unscrupulous physician operating in illicit drug traffic prosecutable under the drug-pushing section of the Controlled Substances Act:
In some communities, one or more physicians have contributed substantially to the illicit traffic in methadone. Some of these instances involved careless or unscrupulous physicians who were prescribing methadone as a pain killer, while others involved physicians who were operating as pushers under the guise of a detoxification program, for which no special registration was required. One of the most notorious cases is that of Dr. Thomas Moore who operated a “methadone program” in the District of Columbia until his final conviction of illegal distribution of methadone on an indictment alleging 38 separate counts. Moore operated from his office with impunity for over two years during which time drugs obtained by addicts from him were often found in the illicit traffic and believed to be involved in cases of narcotic overdose deaths.
* * * * * -x-
Dr. Moore was eventually found guilty on 22 counts and sentenced to a term of 15 to 45 years and fined $150,000. However, if the Attorney General had had the authority provided in S. 1115, as amended, the BNDD could have moved against this dangerous profiteer far more expeditiously.
Id. at 7 .
The only concern manifested by the Congress with felony prosecution of doctors under section 401(a) was that it may be too difficult to establish that a physician acted outside “the course of professional practice,” thereby exceeding the authorization exception of section 401(a). Congress indicated its concern with
the present difficulty in such prosecutions because of the intricate and nearly impossible burden of establishing what is beyond “the course of professional practice” for criminal law purposes when such a practitioner speciously claims that the practices in question were ethical and humanitarian in nature.
*458 •X- * * -X- * *
As illustrated by the example of Dr. Moore, . . . the Attorney General was unable to take successful criminal action against profiteering practitioners except in the most aggravated of circumstances and then only after prolonged effort to make undercover penetrations.
Id. at 14, 13 . 14 Thus the Congress is completely aware of the prosecution of trafficking physicians as such and it clearly was, and is, Congress’ intent that registered physicians be prosecuted under the felony provisions of section 401(a) when they knowingly or intentionally dispense controlled substances other than in “the course of professional practice” and in excess of their registration.
In holding that drug trafficking registrants are absolutely immune from prosecution under the regular drug trafficking section applicable to “any person,” the majority has totally misread the Act and misconstrued the legislative history. I would accordingly hold to the contrary and, having considered all the other points raised by appellant and found them to be without merit, would affirm the convictions on all counts except those in which double sentences were imposed for dispensing to minors without any such allegations being set forth in the indictment. It is my view that the count upon which a sentence is imposed must allege that the victim is a minor if the additional punishment for sale to a minor is sought to be adjudged. As to these counts, I would remand the case for resentencing. 15
. Tr. at 711-12. Methadone detoxification is a currently accepted medical practice designed to cure a narcotic addict of his addiction. It involves initially a “holding stage” in which the methadone dosage necessary to prevent withdrawal symptoms is determined, after which such dosage is gradually reduced until the patient hopefully reaches a drug-free state. See text as 447-448 infra.
The Controlled Substances Act was recently amended to include a specific definition of detoxification for purposes of the Act:
The term ‘detoxification treatment means the dispensing, for a period not in excess of twenty-one days, of a narcotic drug in decreasing doses to an individual in order to alleviate adverse physiological or psychological effects incident to withdrawal from the continuous or sustained use of a narcotic drug and as a method of bringing the individual to a narcotic drug-free state within such period.
Narcotic Addict Treatment Act of 1974 § 2, Pub.L. No. 93-281 (May 14, 1974), 88 Stat. 124 .
. Count one of the indictment is typical of the grand jury charges :
On or about the dates hereinafter specified for each count, THOMAS W. MOORE, JR., the defendant herein, within the District of Columbia, knowingly and unlawfully distributed and dispensed the hereinafter specified amounts of 10 milligram dolophine tablets, a Schedule II, narcotic drug controlled substance to, Bobby J. King, as follows: [etc.].
. Schedule II.' — -
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
(C) Abuse of the. drug or other substances may lead to severe psychological or physical dependence.
Act, § 202(b) (2), 21 U.S.C. § 812 (b) (2).
. At the suggestion of the district court, the original indictment was pared to forty counts; the Government dismissed two counts at the close of its case and the ease finally was submitted to the jury on the thirty-eight remaining counts. All other counts of the original 639-count indictment were dismissed by the Government (Tr. at 1002). Dr. Moore was convicted as to all but one of the nine persons named in the indictment as recipients of the illegally dispensed methadone.
. In effect Moore sold prescriptions for controlled drugs by the pill and that makes him a trafficker. lie also increased the price per pill as the addict or individual requested larger numbers of pills. Thus, while his “price” for 50 pills was $15, or $7.50 for 25 pills, his price was $10 for each additional 25 pills after the first 50. Accordingly, the larger users had to pay a higher price per pill.
. SEC. 401. (a) Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
(b) Except as otherwise provided in section 405, any person who violates subseetion (a) of this section shall be sentenced as follows:
(1) (A) In the case of a controlled substance in schedule I or II which is a narcotic drug, such person shall be sentenced to a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both. If any person commits such a violation after one or more prior convictions of him for an offense punishable under this paragraph, or for a felony under any other provision of this title or title III or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 30 years, a fine of not more than $50,000, or both. Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole *449 term of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 6 years in addition to such term of imprisonment.
(B) In the case of a controlled substance in schedule I or II which is not a narcotic, drug or in t' e case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 5 years, a fine of not more than $15,000, or both. Tf any person commits such a violation after one or more prior convictions of him for an offense punishable under this paragraph, or for a felony under any other provision of this title or title III or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine of not more than $30,000, or bot\ Any sentence imposing a term of imprisonment under this paragrapli shall, in the absence of such a prior conviction, impose a special parole term of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 4 years in addition to such term of imprisonment.
Act § 401, 21 U.S.C. § 841 (1970).
. SEC. 402. (a) It shall be unlawful for any person—
(1) who is subject to the requirements of part C to distribute or dispense a controlled substance in violation of section 309;
(2) who is a registrant to distribute or dispense a controlled substance not authorized by his registration to another registrant or other authorized person or to manufacture a controlled substance not authorized by 1 is registration ;
(3) who is a registrant to distribute a controlled substance in violation of section 305 of this title;
(4) to remove, alter, or obliterate a symbol or label required by section 305 of this title ;
(5) to refuse or fail to make, keep, or furnish any record, report, notification, declaration, order or order form, statement, invoice, or information required under this title or title III;
(6) to refuse any entry into any premises or inspection authorized by this title or title III;
(7) to remove, break, injure, or deface a seal placed upon controlled substances pursuant to section 304(f) or 511 or to remove or dispose of substances so placed under seal; or
(8) to use, to his own advantage, or to reveal, other than to duly authorized officers or employees of the United States, or to the courts when relevant in any judicial proceeding under this title or title III, any information acquired in the course of an inspection authorized by this title concerning any method or process which as a trade secret is entitled to protection.
(b) It shall be unlawful for any person who is a registrant to manufacture a controlled substance in schedule I or II which is—
(1) not expressly authorized by his registration and by a quota assigned to him pursuant to section 306; or
(2) in excess of a quota assigned to him pursuant to section 306.
(c) (1) Except as provided in paragraph (2), any person who violates this section shall, with respect to any such violation, be subject to a civil penalty of not more than $25,000. The district courts of the United States (or, where there is no such court in the case of any territory or possession of the United States, then . the court in such territory or possession having the jurisdiction of a district court of the United States in cases arising under the Constitution and laws of the United States) shall have jurisdiction in accordance with section 1355 of title 28 of the United States Code to enforce this paragraph.
(2) (A) If a violation of this section is prosecuted by an information or indictment which alleges that t’.e violation was committed knowingly and the trier of fact specifically finds that the violation was so committed, such person shall, except as otherwise provided in' subparagraph (B) of this paragraph, be sentenced to imprisonment of not more than one year or a fine of not more than $25,000, or both.
(B) If a violation referred to in subpara-graph (A) was committed after one or more prior convictions of the offender for an offense punishable under this paragraph (2), or for a crime under any other provision of this title or title III or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of im *450 prisonment of not more than 2 years, a fine of $50,000, or both.
(3) Except under the conditions specified in paragraph (2) of this subsection, a violation of this section does not constitute a crime, and a judgment for the United States and imposition of a civil penalty pursuant to paragraph (1) shall not give rise to any disability or legal disadvantage based on conviction for a criminal offense.
Act § 402, 21 U.S.O. § 842 (1970).
. SEC. 403. (a) It shall be unlawful for any person knowingly or intentionally—
(1) who is a registrant to distribute a controlled substance classified in schedule I or II, in the course of his legitimate business, except pursuant to an order or an order form as required by section 308 of this title;
(2) to use in the course of the manufacture or distribution of a controlled substance a registration number which is fictitious, revoked, suspended, or issued to another person;
(3) to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge;
(4) to furnish false or fraudulent material information in, or omit any material information from, any application, report, record, or other document required to be made, kept, or filed under this title or title III; or
(5) to make, distribute, or possess any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identify-iug mark, imprint, or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as to render such drug a counterfeit substance.
(b) It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this title or title III. Each separate use of a communication facility shall be a separate offense under this subsection. Eor purposes of this subsection, tire term “communication facility” means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.
(c) Any person who violates this section shall be sentenced to a term of imprisonment of not more than 4 years, a fine of not more than $30,000, or both; except that if any person commits such a violation after one or more prior convictions of him for violation of this section, or for a felony under any other provision of this title or title III or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 8 years, a fine of not more than $60,000, or both.
Act § 403, 21 U.S.C. § 843 (1970).
. SEC. 309. (a) Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in schedule II, which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act, may be dispensed without the written prescription of a practitioner, except that in emergency situations, as prescribed by the Secretary by regulation after consultation with the Attorney General, such drug may be dispensed upon oral prescription in accordance with section 503(b) of that Act. Prescriptions shall be retained in conformity with the requirements of section 307 of this title. No prescription for a controlled substance in schedule II may be refilled.
(b) Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in schedule III or IV, which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act, may be dispensed without a written or oral prescription in conformity with section 503(b) of that Act. Such prescriptions may not be filled or refilled more than six months after the date thereof or be refilled more than five times after the date of the prescription unless renewed by the practitioner.
(c) No controlled substance in schedule V which is a drug may be distributed or dispensed other than for a medical purpose.
(d) Whenever it appears to the Attorney General that a drug not considered to be a prescription drug under the Federal Food, Drug, and Cosmetic Act should be so considered because of its abuse potential, he shall so advise the Secretary and furnish to him all available data relevant thereto.
Act § 309, 21 U.S.C. § 829 .
. A registered physician necessarily violates the prescription requirements of section 309 when he violates section 401(a). This is true because a prescription is an order of a physician which states the medicine to be used by a patient to treat his particular illness and is the objective manifestation of applied medical skill and experience. In short, it specifies the prescribed remedy for a particular, diagnosed illness and is thus issued for a valid medical purpose. Unless dispensed directly by a practitioner other than a jiharmacist, see text at 451 supra, a Schedule II controlled substance may be dispensed by a practitioner only with a “written prescription.” Act § 309(a), 21 U.S.C. § 829 (a) (1970). A practitioner who dispenses a controlled substance in violation of section 401(a) without a diagnosis and not for the treatment of an illness does so for a non-medical purpose. In so doing he does not “prescribe” the drug as a remedy, even though he may have written words on an order form, and thus also violates section 309(a) by dispensing without a “prescription.” See 21 C.F.R. § 306.04 (1973). Actually, the paper is a fictitious prescription and thus not a valid prescription within the meaning of the Act.
Conversely, a physician may violate section 309 without necessarily being subject to prosecution under section 401(a). That is, a physician who dispenses a controlled substance for a legitimate medical purpose in the course of professional practice but simply fails to comply with the procedural formalities of section 309 could not be prosecuted under section 401(a). For example, if a physician in good faith and for a legitimate medical purpose within the scope of his registration (e. g., detoxification) “knowingly” dispenses methadone by an oral rather than by a written prescription as required under section 309(a), he could only be prosecuted for a misdemeanor under section 402(a)(1), since this procedural infraction is specifically covered by that section. Also, his substantive conduct would be within the scope of his authorization for section 401(a) purposes, but he nevertheless would have acted in a proeedurally irregular manner in violation of section 309(a). This is not, however, the situation before the court today.
. The Narcotic Addict Treatment Act of 1974, Pub.L.No. 93-281 (May 14, 1974), 88 Stat. 124 , enlarged the powers of the Attorney General to revoke registrations. See text at 457 infra.
. See text at 453, supra.
. See note 8 supra.
. When the Dr. Moore investigation was finished, there was abundant proof that lie acted outside the course of professional practice. Dr. Moore also admitted that his registration was limited to detoxification (Tr. 711-12). Thus the acts for which he was convicted were outside his authorization.
. This refers to the sentences imposed on counts 16, 17, 18, 20, 21, 23, 24 and 25 of 10 to 30 years and $10,000 on each such count, that is, $80,000 total. I would not in any way require the district court to interfere with the consecutive nature of these sentences to the sentences on the other counts, but the court of course would also correct the total sentence in keeping with the ultimate sentences imposed.