# United States v. Maurice W. Rosenberg, M.D.

> Court of Appeals for the Ninth Circuit · March 31, 1975 · 515 F.2d 190

URL: https://www.frixlaw.com/law-library/cases/9461692

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Maurice W. ROSENBERG, M.D., Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 31, 1975
- **Citations:** 515 F.2d 190; 33 A.L.R. Fed. 196; 1975 U.S. App. LEXIS 15416
- **Precedential status:** Published
- **Opinion:** Dissent by Ely
- **Judges:** Lumbard, Ely, Wright
- **Cited by:** 62 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9461692

## How later opinions describe it (automated extraction)

- holding that the Required Records Doctrine applied even though the statute in question only required records to be kept for two years and did "not expressly provide that records shall be open to inspection by state officials"
- finding no Fifth Amendment violation even though the statute required records to be kept but not produced (citing Shapiro, 335 U.S. 1, 68 S.Ct. 1375, and Grosso, 390 U.S. at 68, 88 S.Ct. 709)
- finding phrase “in the course of professional practice” has been in statutes since 1914 and courts have shown “ease and consistency” in interpreting phrase

## Opinion text

ELY, Circuit Judge
(dissenting):
I respectfully dissent.
In my view, the clear holding of United States v. Moore, 505 F.2d 426 (D.C. Cir.1974), cert. granted, - U.S. -, 95 S.Ct. 1166 , 43 L.Ed.2d 392 (1975), completely destroys any statutory basis for Dr. Rosenberg’s convictions. Moore holds, with one judge dissenting, that Congress did not intend to subject licensed, registered physicians to the harsh, generally-applicable penal sanctions of 21 U.S.C. § 841 for alleged offenses arising from their prescribing controlled substances that have accepted uses in medical treatment. My intensive review of the complete structure of Title II of the Drug Abuse Prevention and Control ■ Act of 1970 (hereinafter “the Act” or “the 1970 Act”), 21 U.S.C. § 801 et seq., in which section 841 1 appears, convinces me, beyond question, that the conclusion reached by the majority in Moore is correct and that, hence, the majority’s disposition of the present appeal cannot be logically sustained.
I. Statutory Analysis
In the 1970 Act, Congress undoubtedly intended to strike a hard blow at drug traffickers. Nevertheless, Congress had before it a competing consideration, which is listed first among its findings and declarations:
Many of the drugs included within this [Act] have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.
21 U.S.C. § 801 (1). To assure the availability of such drugs for the nation’s medical needs and yet to prevent, insofar as possible, the diversion of such drugs into illegitimate channels, Congress created, in Part C of the Act, 21 U.S.C. §§ 821-829 , that which Congress termed “ . . .a ‘closed’ system of drug distribution for legitimate handlers.” H.R. Rep.No.1444, 91st Cong., 2d Sess. 6 (1970) (1970 U.S.Code Cong. & Admin. News 4571-72). Part C establishes a *201 comprehensive scheme for registering and controlling the physicians, pharmacists, pharmaceutical manufacturers, research scientists, and others whose professional duties require that they be licensed or otherwise legally authorized to manufacture or dispense controlled substances.
Within Part C, section 822(a) requires that physicians and the other professionals within the scope of the “closed system” register annually with the Attorney General. As to physicians, the Attorney General must grant such registration pro forma. He has absolutely no discretion to refuse to register a physician who is already licensed to dispense controlled substances by the state in which the physician practices. 2 21 U.S.C. § 823 (f). Once a physician is registered, the Act makes clear that he is fully authorized to administer or dispense controlled substances to the extent permitted by his registration, 21 U.S.C. § 822 (b), 3 and the only restriction the Act applies to the registrations of physicians is that such registrations confer no authority whatsoever to deal in those controlled substances that have no accepted values in medical treatment. Medically worthless drugs, such as heroin, most of the other opiates, and LSD, are listed in the Act’s Schedule I, 21 U.S.C. § 812 (b)(1); and section 823(f) expressly limits the registrations authorized for physicians to the controlled substances listed in Schedules II, III, IV, and V, all of which have accepted medical uses. 4 See 21 U.S.C. §§ 812 (b)(2)-812(b)(5).
Congress included within Part C a system of administrative controls over physicians and the other members of the “closed system.” There are, for example, extensive record-keeping requirements, and section 829 sets forth the detailed requirements pertaining to doctors’ “prescriptions” for the controlled substances in Schedules II, III, IV, and V. Physicians who abuse their authority to dispense controlled substances are subject to a range of specialized sanctions. Of course, the ultimate and undoubtedly most effective sanction against a physician who uses his professional status merely to traffic in drugs is that his state’s licensing authority may revoke his medical license. Upon such revocation, the physician’s registration under Part C is also revoked; but there are also other reasons for which the Attorney General may suspend or revoke a Part C registration. 21 U.S.C. § 824 . In addition, two later sections of the Act, 21 U.S.C. §§ 842 and 843, identify a number of “unlawful acts” and prescribe penalties, both civil and criminal, that apply specifically to “registrants” or “persons who are subject to the registration requirements of Part C.” 5
In contrast, section 841, the statute under which Dr. Rosenberg stands con *202 victed, contains neither the word “registrant” nor the phrase “persons subject to the requirements of Part C.” Rather, its application is limited by the introductory phrase, “[ejxcept as authorized by this subchapter,” and the only “exception” to which this phrase logically can apply is that created for the “closed system.” by the registration scheme of Part C. The phrase “as authorized by this subchap-ter” in section 841 specifically reflects the “[pjersons registered . . . are authorized . . ” language of section 822(b) in Part C.
There is no language whatsoever in either section 841 or in Part C that supports the view that a physician loses the exception granted by his registration under Part C and thereby becomes subject to the penal sanctions of section 841 by prescribing medically-accepted drugs for what a jury might thereafter determine to be an improper purpose. 6 Dissenting in Moore , Judge MacKinnon writes that Congress’s use in section 841 of the verb “dispenses,” along with the other verbs “manufactures,” “distributes,” and “possesses,” indicates that Congress intended to subject physicians to 841 liability, since Part C professionals are the only one who may “dispense,” as that term is defined in section 802(10). Judge MacK-innon further suggests that since Congress provided in section 824(a) that the Attorney General may revoke a practitioner’s Part C registration if the practitioner is convicted under the Act for a felonious offense, Congress must have intended that section 841, the Act’s only felony provision, should apply. United States v. Moore, supra 505 F.2d at 451, 454 (MacKinnon, J., dissenting).
As to both provisions, Judge MacKin-non overlooks the explanation that registered physicians have no authority to deal in Schedule I controlled substances. Consequently, a physician may illegally “dispense” Schedule I controlled substances and may be prosecuted under the felony provisions of section 841 for doing so. Furthermore, the provisions cited by Judge MacKinnon apply not only to physicians, but also to such other professionals as pharmacists and veterinarians whose state licenses and Part C registrations “authorize” a narrower scope of activities than that authorized for licensed physicians. Since the Attorney General issues a Part C registration to a practitioner solely on the basis of the practitioner’s state professional license, 21 U.S.C. §§ 802 (20), 823(f), the registration could authorize the practitioner to deal in controlled substances only to the extent permitted by the state license. For example, Part C would provide no immunity from section 841 for a veterinarian who “dispenses” Schedule II controlled substances to human patients, since the veterinarian’s state license would not authorize him to undertake such treatments. If this does not clarify the misunderstanding expressed in one of the majority’s footnotes in respect to the point here discussed, then I am unable to eliminate that misunderstanding.
After studying the Act in its entirety, I am impelled to the conclusion that *203 Congress chose not to place a physician in jeopardy of the severe criminal sanctions of section 841 on such a slender thread as a jury’s later conclusion that the physician has prescribed a drug with accepted medical values for an improper purpose. Congress obviously intended for any such abuses to be halted through professional or administrative action and through imposition of the less-severe criminal and civil sanctions provided in sections 842 and 843. Accord, United States v. Moore, supra.
II. Vagueness
Rejecting the careful statutory analysis of Moore , my Brothers choose instead to take our Court further down the tortured and mistaken path first chosen by the Fifth Circuit in United States v. Collier, 478 F.2d 268 (5th Cir. 1973). In doing so, the majority violates one of the cardinal principles of statutory construction — that courts must ascertain the meaning of a doubtful statute by looking to the statutory enactment as a whole, not merely to isolated words and phrases. See, e. g., Richards v. United States, 369 U.S. 1, 11 , 82 S.Ct. 585 , 7 L.Ed.2d 492 (1962). That my Brothers may travel in excellent company, see United States v. Bartee, 479 F.2d 484 (10th Cir. 1973); cf. United States v. Larson, 507 F.2d 385 (9th Cir. 1974); 7 United States v. Badia, 490 F.2d 296 (1st Cir. 1973), does not, despite their protests to the contrary, save, them from their wrongful detour.
In a nutshell, the majority’s reasoning is as follows: The “[ejxcept as authorized by this subchapter” proviso in section 841 refers to section 829, in Part C of the Act, which provides for the dispensing of controlled drugs on the basis of a prescription written by a “practitioner.” And, a physician is a “practitioner,” as that term is used in section 829 and defined in section 802(20), only when the prescriptions he writes are “ . . .in the course of professional practice,” 21 U.S.C. § 802 (20), a phrase that the majority reads to mean “in the course of a proper, usual, or legitimate professional practice.”
As the majority plainly recognizes, the validity of their view concerning the applicability of section 841 to registered physicians depends entirely on the correct reading of the phrase, “ . .in the course of professional practice .which appears not in the penal statute itself, but in the Act’s general definition of the term “practitioner.” In pertinent part, that definition reads:
The term “practitioner” means a .physician . . . licensed by . the jurisdiction in which he practices . to dispense a controlled substance in the course of professional practice . . ”
21 U.S.C. § 802 (20).
One’s first logical reaction after reading the phrase “ . . .in the course of professional practice . . .,” in the context in which it is used, must be that Congress included it within the definition in order to specify the type of license that qualifies a physician for the “practitioner” designation. Once a physician has received such a license from his state, it seems obvious, under the definition, that he is, and remains so long as he retains his license, a “practitioner.” At the time of Dr. Rosenberg’s alleged offenses, he was duly and regularly licensed by the State of California “ . . . to . . dispense a controlled substance in the course of professional practice . . .;” therefore, Dr. Rosenberg was a “practitioner.” 8 The majority’s different construction of the phrase, which is that the phrase has a *204 chameleon-like effect that operates to deprive a physician of the status of “practitioner” whenever the physician acts outside the scope of what a jury of laypersons believes to be a proper, usual, or legitimate professional practice, seems, with all due respect, quite strained. The majority adopts its interpretation despite the well-established rule that penal statutes must be construed strictly in favor of the accused. See e. g., Bell v. United States, 349 U.S. 81 , 75 S.Ct. 620 , 99 L.Ed. 905 (1955).
Assuming, arguendo, however, that Congress did intend to give the phrase the meaning the majority attributes to it, Congress has, without doubt, used language that is “ . . . so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application.” Connally v. General Construction Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322 (1926). The Constitution plainly condemns such vagueness, especially in criminal statutes. See, e. g., Smith v. Goguen, 415 U.S. 566 , 94 S.Ct. 1242 , 39 L.Ed.2d 605 (1974). One of the principal vices of vagueness in penal statutes is, as here, “ . . the treachery they conceal ... in determining what persons are included . . ..” United States v. Cardiff, 344 U.S. 174, 176 , 73 S.Ct. 189, 190 , 97 L.Ed. 200 (1952).
The majority apparently concedes that the phrase, “ . . .in the course of professional practice . . .,” is, on its face, too imprecise to support a criminal conviction. But the majority concludes that the phrase’s meaning has been clarified by several old decisions of the Supreme Court that construe what the majority asserts to be similar language in the now-repealed Harrison Anti-Narcotic-Act, ch. 1, 38 Stat. 785 , enacted in 1914. I submit that the majority’s reliance on the Harrison Act cases is obviously misplaced.
The legislative history of the 1970 Act reveals that Congress intended the new Act to be a complete revision of the criminal provisions of the federal narcotics laws. See United States v. Moore, supra 505 F.2d at 431—34. Without question, Congress sought completely to abrogate the criminal provisions of the old Harrison Act. This fact alone should stand as a clear warning against any blind reliance on the Harrison Act precedents in interpreting the new Act’s provisions.
But there is an additional reason for not doing what the majority has done with the Harrison Act decisions. In those cases the Supreme Court construed a proviso that appeared directly in the penal section of the Harrison Act and which read:
Nothing contained in this section shall apply—
(a) To the dispensing of any of the aforesaid drugs to a patient by a physician . . . registered under this Act in the course of his professional practice only.
Ch. 1, § 2, 38 Stat. 786 . (Emphasis added.) Yet the majority seeks to employ the Supreme Court’s opinions to clarify the following phrase from the 1970 Act: “ . . . licensed ... to dispense ... a controlled substance in the course of professional practice . . ..” 21 U.S.C. § 802 (20). The differences between the two statutes hardly require elaboration. The new Act does not contain the very elements that give the Harrison Act proviso its clear meaning — the phrase “to a patient” and the small but powerful word “only.” These are the precise portions of the Harrison Act proviso upon which the Supreme Court decisions cited by the majority rely. United States v. Behrman, 258 U.S. 280, 288 , 42 S.Ct. 303 , 66 L.Ed. 319 (1922); 9 Jin Fuey Moy v. United States, *205 254 U.S. 189, 194 , 41 S.Ct. 98 , 65 L.Ed.2d 214 (1920). Furthermore, the Harrison Act proviso spoke in terms of “dispensing,” which is the way that the majority, in effect, rewrites the new Act, even though, as I have hitherto thoroughly demonstrated, the operative verb in the new Act is “licensed.”
Actually, the Harrison Act cases support my interpretation of the 1970 Act, rather than the wholly unwarranted interpretation of the majority. My Brothers assert that Congress intended in the 1970 Act to continue the same criminal liability for registered physicians that so clearly existed under the Harrison Act. If this is true, the majority might have undertaken an explanation of why Congress chose in the new Act, in the face of consistently favorable Supreme Court interpretations of the Harrison Act proviso, to alter drastically the language of the proviso by deleting “to a patient” and “only,” to cast the proviso in terms of “licensing” instead of “dispensing,” and to move the proviso from the penal provision to the general definitions section of the Act.
Finally, in further support of its interpretation of the phrase, “ . . . in the course of professional practice .,” the majority relies on an administrative regulation, 21 C.F.R. § 1306.04 (a), which was issued by the Attorney General. The majority’s reliance again is misplaced. To me, it is inconceivable that an unconstitutionally vague and ambiguous penal statute can be cured by a regulation issued by the prosecuting agency. Furthermore, the cited regulation has no relationship whatsoever to the definition of “practitioner” in section 802(20), in which the critical statutory phrase appears. Rather the Attorney General promulgated the regulation pursuant to his general statutory authority under section 821 to make rules for the “closed system” established in Part C. Specifically, the regulation applies to section 829, the portion of Part C that establishes the administrative requirements pertaining to doctors’ prescriptions. A physician who violates one of the regulations pertaining to Part C possibly subjects himself to the administrative and professional sanctions contemplated in Part C and to the specialized provisions for Part C registrants in sections 842 and 843.
The majority, however, and correctly in my view, does not contend that violation of such a regulation, alone, could subject a physician to prosecution under the general penal provisions of section 841. 10 Rather, the majority relies on the Attorney General’s regulation, along with the Supreme Court’s Harrison Act precedents, to eliminate the ambiguity encountered in the section 802(20) phrase, “. . in the course of professional practice . . .I think that, at most, the majority should consider the regulation as an admission by the executive officer responsible for administering the Act that the crucial phrase, as it appears in the statute, is too vague to support the criminal liability that the Government asserts.
*206 The question posed by the ambiguity in the section 802(20) phrase is whether Congress intended to subject licensed physicians to criminal prosecution under section 841 for dispensing medically-approved controlled substances in an allegedly unprofessional manner. To permit the Attorney General to answer that question, in the guise of issuing an “interpretive” regulation, would be, in my view, to countenance an intolerable violation of the doctrine of separation of powers. By such a regulation, the Attorney General could subject a class of persons to criminal liability under a Congressional act wherein, at best, it- is unclear whether Congress intended that such liability should attach. See Viereck v. United States, 318 U.S. 236 , 63 S.Ct 561 , 87 L.Ed. 734 (1943); cf. Reid v. Covert, 354 U.S. 1, 38-39 , 77 S.Ct. 1222 , 1 L.Ed.2d 1148 (1957) (Opinion of Black, J.).
In conclusion, I firmly hold that Dr. Rosenberg’s convictions simply cannot be sustained on the basis of the majority’s reasoning. My Brothers, I think, have subconsciously responded to a realistic concern that the severe sanctions, of section 841 are necessary to prevent some licensed physicians from degrading themselves and damaging society by falling into the category of common drug pushers. I can agree that such a possibility exists and, indeed, even that the majority’s legitimate concern may be illustrated by Dr. Rosenberg’s activities. But we are sworn to uphold the law, and
men are not subjected to criminal punishment because their conduct offends our . . . emotions or thwarts a general purpose sought to be effected by specific commands which they have not disobeyed. Nor are they to be held guilty of offenses which the statutes have omitted ... to define and condemn. For the courts are without authority to repress evil save as the law has proscribed it and then only according to law.
Viereck v. United States, supra, 318 U.S. at 245 , 63 S.Ct. at 565 .
I would reverse.
. All sections of the Act are numbered as they appear in Title 21, United States Code.
. Dr. Rosenberg was licensed as a physician by the State of California. The statute defining the scope of a licensed physician’s practice in California, Cal.Bus. & Prof.Code § 2137 (West 1974), reads as follows:
The physician’s and surgeon’s certificate authorizes the holder to use drugs or what are known as medical preparations in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all other methods in the treatment of diseases, injuries, deformities, or other physicial or mental conditions.
. The 1970 Act was derived principally from the House bill. As to section 822(b), the House committee report states: “The committee inserted this subsection to make it clear that persons registered under this title are authorized to deal in or handle controlled substances.” H.R.Rep.No.1444, 91st Cong., 2d Sess. 38 (1970) (1970 U.S.Code Cong. & Admin.News 4606).
. The charges against Dr. Rosenberg were based on prescriptions he had written for controlled substances listed in Schedules II, III, and IV.
. The criminal penalties provided for registrants in sections 842 and 843 are not as great as those provided in section 841, the statute generally applicable to narcotics traffickers; nevertheless, the sections 842 and 843 sanctions are substantial. Section 842 authorizes a maximum punishment of one year’s imprisonment and a $25,000 fine. Sectiori 843 provides for imprisonment for a period as long as four years, plus a maximum fine of-$30,000.
. The majority’s argument that Title I, section 4 of the Act, 42 U.S.C. § 257a, which focuses on the development of standards for medical treatment of narcotics addicts, stands as evidence that Congress intended that the general criminal penalties of section 841 should apply to registered physicians has already been rebutted- in United States v. Moore, 505 F.2d at 433-34 . I note in addition, however, that on its face, 42 U.S.C. § 257a says nothing whatsoever about any criminal sanctions applicable to physicians who fail to follow the standards promulgated by the Secretary of Health, Education and Welfare. Rather, the Secretary’s role under the statute appears primarily to relate to research and the advancement of generally-available scientific knowledge concerning the treatment of narcotics addiction. Furthermore, the majority is incorrect in asserting that under my reading of the Act, any special provision concerning the treatment of addicts would be superfluous since a physician could never be prosecuted for providing drugs simply to maintain an addiction. The majority overlooks, or chooses to disregard, the significant point, made earlier, that Part C confers absolutely no authority on registered physicians to deal in Schedule I controlled substances. Consequently, Part C would provide no protection to a doctor who “dispenses” heroin to a heroin addict.
. I was a member of the panel of this court that decided Larson , wherein we unanimously affirmed the section 841 conviction of a licensed physician on facts similar to those presented here. . Because of the more searching inquiry prompted by the briefs and arguments in this case and by the decision in Moore , I am now convinced that our decision in Larson was wrong. I regret, of course, that I cannot now undo my judicial mistake in respect to Larson .
. See the relevant California statute, quoted supra n. 2.
. In Behrman, the Supreme Court reversed a District Court’s dismissal of an indictment that charged a physician with prescribing large quantities of heroin and morphine to a person known by the physician to be an addict for the allegedly illegal purpose of maintaining the addict’s habit. The Supreme Court held that the indictment stated an offense against the physician under the Harrison Act. Despite the language of the Harrison Act proviso pertaining *205 to physicians, which would establish Dr. Behr-man’s criminal liability far more clearly than could the critical language in the 1970 Act, Justices Holmes, Brandéis, and McReynolds dissented. The dissenters’ comments, written by Mr. Justice Holmes, are fully applicable to the result the majority reaches in the instant case.
It seems to me impossible to construe the statute as tacitly making such acts, however foolish, crimes, by saying that what is in form a prescription and is given honestly in the course of a doctor’s practice, and therefore, so far as the words of the statute go, is allowed in terms, is not within the words, is not a prescription and is not given in the course of practice, if the Court deems the doctor’s faith in his patient manifestly unwarranted. It seems to me wrong to construe the statute as creating a crime in this way without a word of warning.
258 U.S. at 290 , 42 S.Ct. at 305 (Holmes, J., dissenting),
. The majority does note that section 871(b) grants the Attorney General authority to promulgate rules and regulations for the effective administration of the Act. With this I do not quarrel. It is clear, however, that section 841, under which Dr. Rosenberg was convicted, contains no provision to the effect that a violation of the Attorney General’s regulations constitutes a criminal act.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9461692. Public record. Not legal advice.